Highlands Inn, Inc. v. Gurries

granting respondents’ motion for dismissal of the complaint for lack of timely return of summons, and from the order

[696]

denying appellant’s motion for continuance to obtain depositions..

The complaint was filed on September 21, 1964, and summons was served on respondents August 29, 1967, and August 30, 1967. On October 24, 1967, appellant’s attorney discovered that the summons with proofs of service was not on file in the court records. Approximately one month after the lapse of the time limitation prescribed in Code of Civil Procedure section 581a, a declaration of personal service of summons and complaint was filed. (Code Civ, Proc., § 410.)

On October 26, 1967, respondents filed a- motion for an order of dismissal for lack of timely return of summons-. (Code Civ. Proc., § 581a.) After hearing the motion, an order of dismissal was entered on November 17, 1967, by the court.

Two questions are presented: (1) Does section 581a of the Code of Civil Procedure require dismissal upon motion when summons has been served on the defendant and the return of summons was mailed to the county clerk within the three-year period but allegedly lost in the mail, and (2) does a stipulation which extends time to plead made before the motion to dismiss but after the expiration of the three-year period constitute a general appearance ?

The facts: On September 21, 1964, appellant filed its complaint for $231,121.59 in damages arising out of a loan made by respondents to appellant upon which appellant alleged the legal rate of interest was usurious and asked for treble, damages.

Although the respondents owned property and a business adjacent to the property and business of the appellant corporation and frequently came upon the property of appellant, the summons was not served until August 1967, almost three years after the complaint was filed. At the hearing, appellant’s attorney explained that the press of business prevented early service of the summons and that the original summons had been lost in March 1965. Alias summons was issued on July 13, 1967, but the original summons was found on August 5, 1967. The respondents were served on August 29 and 30, 1967, and the summons with proofs of service were returned to appellant’s counsel on August 30, 1967, by the process server. According to the declaration of appellant’s counsel, the summons with proofs of service was placed in the mail on August 30, 1967, addressed to the county clerk’s office. No accompanying letter of transmittal was sent to the clerk and