Beckwith v. County of Los Angeles

California Court of Appeal Apr 19, 1955 No. Civ. 20793Published

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Holding. The court held that under Code of Civil Procedure section 581a, an action must be dismissed if the summons is not served and the return of service is not filed within three years of the commencement of the action. A defendant's appearance after the three-year period does not waive the right to a mandatory dismissal.

Issues

Whether section 581a requires both service of summons and the return thereof within three years of the commencement of an action.
Whether a general demurrer filed after the three-year period constitutes a waiver of the right to move for dismissal under section 581a.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the provisions of said section are mandatory.”

“neither can operate as a waiver”

[378]

THE COURT.

The instant action for damages for malfeasance of public officials and for false arrest was filed on July 18, 1951, and summons issued on that date. Nothing further was done by any of the parties until July 16, 1954, when a copy of the summons was filed and service was made on the county of Los Angeles and on defendant sheriff. Service on the city of Los Angeles was made on July 19, 1954.

Notices of motion to dismiss said action were filed by the city on July 22d and by the county and the sheriff on July 23d. These motions were based on lack of jurisdiction, in that no return of summons was made within three years after commencement of the action, as required by section 581a of the Code of Civil Procedure.

Proof of service as to each defendant was returned herein by filing affidavits thereof in the office of the county clerk on July 28, 1954. On that same day, the city of Los Angeles filed a general demurrer to the complaint.

At a hearing held on August 13, 1954, the trial court ordered the demurrer off calendar, and granted the respective motions to dismiss.

Prom the judgment which followed, plaintiff appeals.

It is here urged: (1) That it is the actual service of summons and not the return thereof which must be made within the required three-year period; and (2) That respondent city of Los Angeles by filing a general demurrer waived its right to insist upon a dismissal.

Section 581a, Code of Civil Procedure, under which respondents proceeded, reads:

“ {Dismissal on lack of prosecution.)

No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein . . . unless summons shall have issued within one year, and all such actions must be in like manner dismissed,

unless the summons shall be served amd return thereon made within three years after the commencement of said action,

Beckwith v. County of Los Angeles

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THE COURT.

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