Carter v. Superior Court

California Court of Appeal Nov 30, 1960 No. Civ. 19511Published

Before: Duniway

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Holding. The court held that the trial court did not abuse its discretion in denying a motion to dismiss for failure to return a summons within three years, as the defendant's concealment within the state tolled the statutory period for both service and return of summons.

Issues

Whether the statutory requirement to return a summons within three years is tolled by a defendant's concealment within the state.
Whether the exception for concealment applies to the return of summons as well as the service of summons.

Disposition. denied

Quotations verified verbatim against the opinion

“It follows that any extension of time in which to make the service also extends the time in which to make the return.”

“the exception, relating to concealment, vested a discretion in the trial court in applying it”

DUNIWAY, J.

Petition for writs of mandate and prohibition to compel dismissal of an action and to prevent any other proceedings therein, by reason of plaintiff’s failure to return the summons within three years of the filing of the action. (Code Civ. Proc., § 581a.) Either writ would be a proper remedy.

(Rio Del Mar etc. Club, Inc.

Superior Court,

84 Cal.App.2d 214 [190 P.2d 295];

J. C. Penney Co.

Superior Court,

52 Cal.2d 666 [343 P.2d 919].) Section 581a requires dismissal “unless the summons shall be served and return thereon made within three years after the commencement of said action, . . . provided, that ... no dismissal shall be had ... as to any defendant because of the failure to serve summons on him . . . while he has secreted himself within the State to prevent the service of summons on him.”

[3]

The chronology in this case is as follows:

March 29, 1957 — Complaint filed.

March 28, 1960 — Summons served.

May 20, 1960 — Motion to dismiss filed.

June 24, 1960 — Motion denied.

There was no appearance by the defendant within the three years. On June 24, 1960, the summons had not been returned. Counsel for respondent seem to take the position that it need never be returned.

It is now too late to argue that the section does not mean what it says when it requires that the summons be returned (i.e., filed with the court), as well as served within the three years.

(Vrooman

Li Po Tai,

113 Cal. 302 [45 P. 470] ;

Carter v. Superior Court

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DUNIWAY, J.

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