Ransome-Crummey Co. v. Wood

California Court of Appeal Mar 20, 1919 No. Civ. No. 2835.Published

Before: Waste

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Holding. The court held that the failure to return a summons with proof of service within three years of commencing an action mandates dismissal under Section 581a of the Code of Civil Procedure, regardless of notice to the parties.

Issues

Whether the failure to return a summons within three years of filing an action requires dismissal.
Whether a court must provide notice to parties before dismissing an action for failure to return a summons within the statutory period.
Whether the transfer of a case between departments of the superior court requires notice to the parties.
Whether the Vrooman Act supersedes the Code of Civil Procedure regarding the service and return of summons in street assessment lien cases.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The failure of the plaintiff to cause the summons, with proof of service thereof, to be returned within three years after the commencement of the action, deprived the court of jurisdiction to take any other action than to dismiss the case.”

“The court can take such action without notice to either of the parties. On the record plaintiff was not entitled to notice.”

Synopsis

The facts are stated in the opinion of the court.

[356]

WASTE, P. J.

Plaintiff appeals from an order dismissing the action.

On the tenth day of June, 1914, plaintiff commenced an action against defendant by filing in the superior court of Santa Clara County its verified complaint to foreclose a certain street assessment lien. Summons was duly issued on the same day. No further proceedings were had in the cause until on June 8, 1917, when an amended complaint was filed. Thereafter, on the twenty-sixth day of June, 1917, the summons was filed in the action, together with an affidavit showing service thereof upon the defendant, Louis E. Wood, ‘ ‘ on the-day of June, 1917.”

On the same day, June 26th, there was filed on behalf of said defendant, Louis E. Wood, a notice of motion for an order dismissing the cause upon the ground that the summons in the action was not served or return thereon made within three years after the commencement thereof. The motion was noticed to be heard on the twenty-ninth day of June, at 10 A. M. of said day, or as soon as counsel could be heard (three days after its filing), and time of notice was shortened to one day by order of the judge of the court. On the same day the motion was filed, June 26th, the notice of motion and order shortening time were served on the attorney for plaintiff by deposit in the postoffice in San Jose, the office of plaintiff’s attorney being in San Francisco.

The motion to dismiss was based on the affidavit of the defendant and the records in the ease. According to the former, the defendant was not served with the summons until on the twenty-fifth day of June, 1917, and at no other time was any pleading or paper in the action ever served on Mm.

On the day, and at the time noticed, June 29th, the motion was regularly on the calendar of Department One of the superior court of Santa Clara County, and was transferred to Department Three of said court, where, after due hearing, the court granted the motion and dismissed the action upon the grounds specified in the notice. Notice of the court’s action was given to plaintiff by mail. It took no steps to have the order dismissing the action set aside, but contents itself with an appeal therefrom.

On the appeal, it is contended that due notice of the motion to dismiss the action was not given appellant (plaintiff)

Ransome-Crummey Co. v. Wood

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Synopsis

WASTE, P. J.

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