Perati v. Atkinson

SHOEMAKER, P. J.

Plaintiff Paul Perati appeals from a judgment dismissing an action as against defendants Bennie

[252]

Atkinson, John Fisher, Robert Gray, Robert Ash, Emery Olson, and Ford Chatters.

On November 6, 1959, appellant filed his complaint for damages naming as defendants the above named respondents, as well as one O reste Guilliani and 20 John Does. Summons was issued on the same day. On November 10, 1960, appellant filed a “First Amended and Supplemental Complaint for Damages,” which differed from the original only in that it named one Charles Navarro as an additional defendant. Navarro was duly served with process, and, on February 3, 1961, demurred to the complaint. Upon the sustaining of the demurrer with leave to amend, appellant filed another “First Amended Complaint” on March 27, 1961, and, on the same day, had new summons issued thereon.

(Perati

v.

Atkinson

(1963) 213 Cal.App.2d 472 [28 Cal.Rptr. 898].) Navarro’s demurrer to this third complaint was sustained without leave to amend on May 29, 1961, and the judgment of dismissal was affirmed on appeal.

(Perati

v.

Atkinson, supra.)

On November 27, 1962, respondents moved for dismissal of the action, pursuant to Code of Civil Procedure, section 581a, on the ground that return of summons had not been made as to any of the respondents within three years of the commencement of the action. Appellant filed opposition to the motion, admitting the filing of the complaint and the issuance of summons on November 6, 1959, but alleging that the issuance of new summons on March 27, 1961, had “superseded” the earlier summons. The court granted respondents’ motion and, on December 14, 1962, entered judgment of dismissal in their favor.

Appellant now contends that the trial court erred in dismissing the action because the three-year period during which return of summons was required to be made commenced running on March 27, 1961, when appellant filed his third complaint, and not on November 6, 1959, when he filed the original complaint. Appellant supports this argument by citing various authorities to the effect that an original complaint is superseded by an amended complaint, no longer functions as a pleading, and cannot be looked to for issues to be tried. (See