Sauer v. Superior Court

[581]

CONREY, P. J.

On writ of prohibition. On the twenty-fifth day of June, 1921, Brown, special administrator of the estate of Murray, filed his complaint against Anna M. Sauer and others for the foreclosure of a mortgage on real property in San Diego County. On the twenty-ninth day of December, 1924, pursuant to notice duly given, Joseph G-. Sauer, petitioner herein, who was a defendant in that action, presented to the Superior Court his motion for an order to dismiss said foreclosure action and for judgment of dismissal thereof. The stated ground of the motion was as follows: “That more than three years have elapsed since the commencement of said action, and a summons has not been served and return thereon made within three years after the commencement of said action, according to the provisions of section 581a of the Code of Civil Procedure of the. State of California. ...” There is no contention that the summons in said action was not issued promptly. The motion was heard upon affidavits and the record of the action. The Court denied that motion, and in connection therewith asserted its jurisdiction to further proceed in said action, and will so proceed unless prevented by peremptory writ of prohibition.

Contending that the Superior Court is without jurisdiction to proceed further in said action, petitioner relies upon the following provisions of section 581a of the Code of Civil Procedure: “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 be 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 manner as if summons had been issued and served; ...”

The affidavits and record show that no appearance in the action was made by the petitioner within three years

[582]