Lambert v. Raney

STONE, J.

Plaintiff appeals from an order dismissing action for failure to serve and return summons within three years, and from an order denying issuance of alias summons, a nonappealable order under Code of Civil Procedure section 963 which may be reviewed on appeal from the judgment.

(Price

v.

Hibbs,

225 Cal.App.2d 209, 212 [37 Cal.Rptr. 270].) Section 581a of the Code of Civil Procedure 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 under this section as to any defendant because of the failure to serve summons on him during his absence from the State, or while he has secreted himself within the State to prevent the service of summons on him.”

Chronology

September 8, 1961—Complaint filed against defendant and a codefendant.

May 11, 1964—Summons served on the codefendant.

June 24, 1964—Summons returned and filed.

October 13, 1964—Defendant filed notice of motion to dismiss under Code of Civil Procedure section 581a.

November 2, 1964—Motion to dismiss granted, then vacated by same order, and motion reset for November 24, 1964.

November 24, 1964—Counsel for plaintiff granted permis

[661]

sion to take deposition of defendant to ascertain absence from the state during three-year period.

December 16, 1964—Plaintiff filed affidavit in opposition to motion to dismiss, alleging defendant’s admission of absence from state for a period of 64 days between September 8, 1961, and October 22, 1964.

January 15, 1965—The court found respondent had been absent from state a total of 64 days; that three years plus 64 days expired November 12, 1964. Plaintiff’s attorney orally moved for issuance of alias summons, the court requested a formal motion.