Witter v. Phelps

SLOSS, J.

Plaintiff appeals from a judgment of dismissal. On May 1, 1908, plaintiff filed his complaint, asking the recovery of one hundred thousand dollars’ damages for the breach of an alleged contract. The action was commenced in the city and county of San Francisco. Summons was issued at once, but was not served on the defendant until the third day of August, 1910, two years, three months and two days after the filing of the complaint and the issuance of summons. On August 17, 1910, the defendant appeared by filing a notice of intention to move for change of place of trial to the county of her residence, San Mateo, together with a demand for such change, an affidavit of merits, and a demurrer. The motion was granted and, on September 21, 1910, the papers in the cause were filed in San Mateo County.

On October 13, 1910, the defendant served and filed her notice of intention to move for a dismissal of the action upon the grounds of long and unnecessary delay in the service of summons “and because of the laches, lack of diligence and want of prosecution in and of said action by the plaintiff.” The appeal is from the judgment entered upon the order of the court granting the motion.

The power of the court to dismiss an action for want of reasonable diligence in prosecuting it has often been declared by this court.

(First Nat. Bank

v.

Nason,

115 Cal. 626, [47 Pac. 595];

Mowry

v.

Weisenborn,

137 Cal. 110, [69 Pac. 971] ;

People

v.

Jefferds,

126 Cal. 296, [58 Pac. 704].) In 1889, subdivision 7 was added to section 581 of the Code of Civil Procedure. (Stats. 1889, p. 398.) The effect of the subdivision, which, as amended (Stats. 1895, p. 31) was, in substance

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