Taliaferro v. Riddle

WOOD (Fred B.), J.

Plaintiff appeals from an order of April 1, 1957, which quashed service of an alias summons and amended complaint upon defendants Valentine K. and Elsie M. Hartman. These defendants had been served on March 9 and March 28, 1957, pursuant to an order of June 18, 1954, which directed the joining of the Hartmans as necessary parties defendant.

The notice of motion specified two grounds only: (1) On June 14, 1954, an order was made dismissing this action as to the Hartmans, and (2) they were not served within three years after the commencement of the action.

Neither of these grounds furnishes legal support for the order appealed from.

[569]

The dismissal of June 14, 1954, was made pursuant to the mandate of section 581a of the Code of Civil Procedure which requires service of summons within three years after the commencement of the action.

*

The original complaint was filed on June 21, 1950. The Hartmans were served in May of 1954. That order of dismissal decided nothing on the merits and was not res judicata on the question whether the Hartmans are necessary parties.

(Gonsalves

v.

Bank of America,

16 Cal.2d 169, 172-173 [105 P.2d 118].) It had the procedural effect of making them strangers to the action, so that when later they were ordered joined and were named as defendants in the amended complaint filed pursuant to that order, they came in as new parties and the action commenced anew as to them.

Section 581a does not prevent the bringing of a new action against a dismissed defendant by filing a new complaint against him. We see no reason why a plaintiff can not do the same, in legal effect, by suitably amending his complaint in the original action upon obtaining leave of court therefor. The reason for such a rule is especially cogent when, as here, the court directed that the new parties be joined as “necessary” parties. The provisions and purposes of section 389 of the Code of Civil Procedure, which sanctions and in some cases requires the bringing in of new parties, would frequently be completely thwarted if the one-year and the three-year limitation periods of section 581a were to commence on the day of the filing of the original complaint when a new party is brought in.