Chilcote v. Pacific Air Transport

STURTEVANT, J.

From an order made dismissing the above-entitled action the plaintiff has appealed. The ’transcript discloses the defendant corporations are foreign eau-porations; that C. E. Johnson is their resident agent designated by them as the person on whom process may be served; that the said action was commenced July 11, 1933; that itwas brought to recover damages for injuries sustained by the plaintiff in an aircraft accident which happened on July 11, 1932; that an amended complaint was filed July 8, 11939; that the summons was issued on July 11, 1933; t.Mit the. complaint and the summons were delivered to the/sherifí: of Alameda County on July 3, 1936, and were servad on July 7, 1936; that on August 15, 1936, the summon/had not been returned: that on August 18, 1936, the defendants served

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oil the plaintiff a notice that they would move to dismiss said action on the grounds: (1) that the summons had not been returned within three years after the commencement of the action and (2) plaintiff’s lack of prosecution of said action and her failure to serve process for two years, eleven months, twenty-six days after the action was commenced; that on the hearing of said motion the affidavits of C. E. Johnson and Adrien Hynes were offered in evidence in support of said motion and the affidavits of Laurence R. Chilcote and H. A. Ilmanen were offered in opposition to said motion; that certain written instruments were incorporated in the affidavit of Laurence R. Chilcote and, on the hearing, they were offered in evidence; and that thereafter, on September 1, 1936, the trial court made an order granting said motion. From that order the plaintiff has appealed.

We will first discuss the first ground of the defendants’ motion. Section 581a of the Code of Civil Procedure contains the following provisions: “No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall served and return thereon made within three years after.the commencement of said action. But all such actions may (be prosecuted if appearance has been made by the defendant or defendants, within said three years in the same mann'ier as if summons had been issued and served; . . . ” It is;’ not claimed the summons was returned within three yearns after the date of the commencement of the action. Unless the defendant appeared before the motion was made the trial court had no jurisdiction to proceed.