J. A. Thompson & Sons, Inc. v. Superior Court

KINGSLEY, J.

The facts of this case are simple. However, the point of law involved is both unique and challenging. Petitioner is one of several defendants in a wrongful death action filed by the decedent's widow on August 17, 1959. The original complaint designated the widow as the only plaintiff; however, it alleged that she was proceeding individually and on behalf of her minor son

“as

his natural guardian.” After a demurrer to the original complaint, filed by another defendant, was sustained, the widow, on February 19, 1962, filed an amended complaint. In this pleading the minor son, by the widow as guardian

ad litem,

was designated as an additional plaintiff. It alleged that the widow was appointed by the court as such guardian on February 8, 1962. No material change appears in the allegation setting forth the cause of action.

Petitioner at no time made any voluntary appearance and was first served with summons and the first amended complaint on August 31, 1962. Immediately thereafter, petitioner moved for a dismissal of the action as to it pursuant to section 581a of the Code of Civil Procedure, on the ground that service and return of summons were not made within three years from the date the action was first commenced. Petitioner’s motion was granted as to the “cause of action” of the widow, but denied to the “cause of action” of the minor. The petitioner now seeks a writ of prohibition to prevent the trial court from proceeding with the cause of action of the minor.

Section 581a is mandatory, and is jurisdictional in that, when a meritorious motion is made the court has jurisdiction only to dismiss; and prohibition is a proper remedy to prevent the court from proceeding with the action. (Rio

Del Mar Country Club, Inc.

v.

Superior Court

(1948) 84 Cal.App.2d 214 [190 P.2d 295].)

Therefore, the only issue before this court on the facts presented is whether the mandatory three-year period for

[721]