Torgersen v. Smith

Opinion

WORK, J.

*

Plaintiff appeals an order quashing summons and a companion order dismissing his action for failure to comply with the mandatory requirements to make service and return of summons within three years (Code Civ. Proc., § 581a).

The sole question on appeal is whether personal service by a copy of a summons and complaint

after

the original of that summons had been filed with the clerk is sufficient to bring a defendant under the court’s jurisdiction, so long as both the original summons and proof of service are filed within three years.

[950]

The undisputed chronological facts are:

April 15, 1975—Complaint filed; summons issued.

March 18, 1978—First amended complaint filed; original summons returned unserved.

March 20, 1978—Further amendments set forth true names of Does I, II, III, IV and V.

April 11, 1978—Second amended complaint filed.

April 13-17, 1978 (the last date for service)—All parties were personally served with a copy of complaint, first amended complaint and amendments thereto, second amended complaint, and a copy of the original summons. None of the amended pleadings added parties not included in the original complaint. No summons on amended complaint was obtained.

1

The issue is one of first impression.

There is no express statutory prohibition to the acquiring of jurisdiction by service of process in the manner described. A process server is no longer required to have the original summons in his possession at time of service. Personal service is obtained by serving a copy of summons and complaint (Code Civ. Proc., § 415.10).

Respondent claims the filing of the original summons voids it so no effective personal service can be made on it thereafter. He relies on the following language in