Huson v. Superior Court of Orange County

STONE, J.

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Petitioner, a defendant in an action instituted to recover damages for personal injuries arising out of a collision between two motor vehicles, seeks a writ of prohibition restraining respondent superior court from hearing further proceedings, and for a dismissal of the action. The petition is predicated upon both grounds for dismissal for lack of prosecution of an action specified in Code of Civil Procedure section 581a: (1) failure to have summons issued within one year from the filing of the complaint, and (2) failure to have the summons served and return thereon made within three years after the commencement of the action.

The matter must be decided adversely to petitioner upon both grounds, for lack of a record. In support of his contention that no summons was issued within a year, petitioner alleges that the action was filed December 15, 1959, that no summons was issued, but that on October 27, 1961, an alias summons was issued. The real parties in interest reply that this issue was tried in the court below, that the trial court determined a summons did issue at the time the complaint was filed, although it was not served within one year.

We do not have the clerk’s file before us or, for that matter, any record, so we must assume that the trial court correctly determined this issue.

Furthermore, Code of Civil Procedure section 408 provides that an alias summons may issue only if the original has been returned unserved or if it has been lost. It must be

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presumed that the clerk or the judge of the court who issued the alias summons complied with the law. In the absence of a record indicating otherwise, the presumption must prevail.

In support of his second ground, petitioner alleges that the action was filed December 15, 1959, but no summons was served prior to May 23, 1963, and at that time petitioner moved to dismiss the action for the reason that summons had not been served and return made thereon within three years after commencement of the action. Section 581a provides an exception to the foregoing rule, upon which real parties in interest rely. In this regard the section reads: