Boyer v. City of Long Beach

[618]

NOURSE, J.

This is an appeal by plaintiff from an order denying his motion to vacate an order dismissing his action against defendant made under section 581a of the Code of Civil Procedure, on the ground that the summons in the action was not served on defendant within three years next after the commencement of the action and that defendant had not appeared in said action.

The complaint was filed on May 12, 1914. Summons was; not served upon defendant at any time. On October 4, 1915, the mayor of the defendant city served on counsel for plaintiff a notice that certain attorneys had been substituted .by defendant for other attorneys, and this notice was filed with the papers in the case. Nothing further was done until January 4, 1918, when the attorneys so substituted for the first time appeared in the action and moved a dismissal on the grounds above stated. This motion was granted on January 16, 1918, no opposition being made thereto on behalf of plaintiff.

Thereafter and on August 5, 1918, plaintiff filed a notice of motion to vacate the order of dismissal on the grounds that (1) the motion was made by one who was not an attorney of record; (2) that the face of the record showed that a general appearance had been made by defendant, and (3) that the motion was not supported by affidavits or other evidence. This motion was denied by the trial court, and from that order the appeal is taken.

[1]

An order dismissing an action under section 581a of the Code of Civil Procedure, is, when entered upon the minutes of the court, a final judgment from which an appeal may be taken. It was so held, in

Marks

v.

Keenan,

140 Cal. 33, [73 Pac. 751], when the provisions of this .section were contained in section 581. It is true the latter section also provided that the orders of dismissal should be entered in the minutes of the court and that when so entered they should be effective for all purposes. This language was not carried into section 581a when the change was made, but the record here discloses that the order was entered in the minutes of the court and the effect of the entry can be none other than that specified in section 581. When a judgment or order is not void on its face because the subject matter is without the jurisdiction of the court rendering it, the law provides sufficient methods to reverse or correct it by appeal,