Bank of America National Trust & Savings Ass'n v. Harrah

FOX, J.

On January 28, 1946, plaintiff filed this action based on two judgments. On June 27, 1950, the defendant, “appearing specially for the purpose of making this

[640]

motion, ’ ’ filed Ms notice of motion to dismiss on the grounds of laches in failing to have summons and complaint served within a reasonable time after the filing of the action and issuance of summons; and upon the further ground that the action had been pending more than three years, that it had -been more than three years since the summons had been issued, and that it had not been served upon the defendant. The motion was supported by two affidavits of defendant. In one of his affidavits defendant states he lived in Los Angeles County from January 28, 1946, to June 10, 1946, at which time he moved to Nevada; that during this period plaintiff could have served him with summons and complaint ; and that the failure of plaintiff to serve such papers upon him “constitutes laches upon the part of said plaintiff and has resulted in great and serious detriment to your said defendant, inasmuch as it has prevented your said defendant, among other things, from regularly conducting his affairs and attending to his practice of law as a profession, in the State of California and otherwise.” Plaintiff filed counteraffidavits which set forth the efforts made to locate and serve defendant.

The motion to dismiss was denied, the minute order reciting the defendant was appearing specially for that motion only. Thereafter plaintiff filed its notice of motion to enter the default of defendant upon the ground defendant had by his motion to dismiss made a general appearance and since making such appearance had not answered in the time allowed by law. The court held defendant had made a general appearance and since he had not answered in the required time his default was ordered entered and judgment for plaintiff followed.

The only question on this appeal is whether defendant’s notice of motion to dismiss and motion based thereon constituted a general or a special appearance.

Prom defendant’s notice of motion it is apparent his motion to dismiss was based on section 581a, Code of Civil Procedure. This section in brief prpvides for mandatory dismissal of an action if the summons is not served and returned within three years after the filing of the action, except 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 service of the summons.