Miles & Sons, Inc. v. Superior Court

VAN DYKE, P. J.

This is a petition praying alternatively for a writ of prohibition to restrain the respondent court from proceeding further in a pending action in which petitioner is one of the defendants or for a writ of mandate to compel the respondent court to dismiss the action as against petitioner.

The action against petitioner and others was commenced by the real parties in interest in the respondent court on December 24, 1956. Within three years thereafter petitioner was duly served with summons, but the return thereon was not made until January 4, 1960. However, on December 29, 1959, counsel for petitioner requested an extension of time in which to appear and plead, explaining that he might desire to make “certain preliminary motions.” On December 30, 1959, counsel for petitioner prepared and forwarded the following, unsigned stipulation, together with a copy thereof, to the attorney for the real parties in interest:

“Plaintiffs in the above entitled action, by and through their attorney, William Wear Clark, hereby stipulate and agree that the time which defendant, Miles & Sons, Inc., a Nevada Corporation, may appear, answer, demur or otherwise move or plead, is extended to and including January 15, 1960.

“Dated: Dee. 31,1959

Attorney for Plaintiffs.”

The attorney for the real parties in interest signed the requested stipulation and filed it in the respondent court on January 4, 1960. On the same day petitioner noticed a motion for dismissal of the action, which motion was made and argued on January 11th and thereafter denied. Petitioner contends that it was mandatory upon the trial court to dismiss the action as the return of summons was not made until more than three years after the commencement of the action.

(Beck

[153]

with

v.

County of Los Angeles,

132 Cal.App.2d 377, 379 [282 P.2d 87].)

Section 581a of the Code of Civil Procedure provides, in part: “Noaction 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 the motion of any party interested therein, . . . unless the summons shall be served and return thereon made within three years after the commencement of said action,