Bryson v. Harryman

BARNARD, P. J.

This is an appeal from an order dismissing the action upon the ground that the plaintiff had failed to prosecute the same with diligence, in that the service of the summons was unduly delayed.

The action was originally brought by Blakely Durant as plaintiff, the special administrator of his estate being substituted during the appeal. The complaint, filed on July 7, 1927, in a first cause of action seeks to quiet title to certain land in Riverside County, and in a second cause of action seeks to eject some of the defendants from said land. On December 7, 1928, at which time summons had not been served on any of the defendants, the defendant McKay served notice of a motion to dismiss the action because of the failure of the plaintiff to prosecute the ease with diligence, and because of the undue delay of the plaintiff in serving the summons. This action was noticed for December 24, 1928. On December 19, 1928, all of the defendants except Rose J. Woody and the fictitious defendants, were personally served with summons in the county of Riverside. When the motion was heard, it was supported by the affidavit of defendant McKay, sworn to on December 6, 1928, in which

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it was set forth that she was well acquainted with the plaintiff and had known him for many years; that the plaintiff at all times knew that she lived in the city of Riverside and also knew that she could easily be found in said city; that summons had never been served upon her and had never been returned to the court; that she had never been notified in any manner of the existence of the action and that she knew nothing of the same until her attention was called to the matter on or about November 21, 1928, by the Riverside Title and Guaranty Company, which company was searching the title in her behalf; that she was the holder of the legal title to the property mentioned in the complaint ; and that she had fully stated all of the facts to her attorney and had been advised by him, and believed, that she had a good and meritorious defense to the action. In opposition to the motion there was presented the affidavit of the plaintiff consisting of only eight lines, the material parts thereof' reading as follows:

“I am the plaintiff in this action; I am old and infirm, and have been sick much of the past year. I am also a poor man and have not the means heretofore to prosecute this action.”