Mori v. Mori

SLOSS, J.

Plaintiff is the mother of the two defendants. She brought this action to set aside a lease executed and delivered by her to them. The complaint was filed and summons issued on July 16, 1910. Summons was not, however, served upon the defendants until May 4, 1912, something over twenty-one months after the issuance of summons. Shortly after the service of summons the defendants moved to dismiss the action for want of prosecution. The motion was granted and judgment of dismissal was entered.

The plaintiff appeals from this judgment, and also from a subsequent order denying her motion to set aside such judgment on the ground that the judgment had been taken against her through her inadvertence, surprise, and excusable neglect.

The only question involved is whether the court abused its discretion in dismissing the action or in refusing plaintiff’s application to be relieved from such dismissal. It is well settled that the trial court has power to dismiss for undue delay in issuing or serving summons, even though the delay has been for a shorter period than that which, under the terms of section 581a of the Code of Civil Procedure, gives the defendant an absolute right to a dismissal.

(Witter

v.

Phelps,

163 Cal. 655, [126 Pac. 593], and cases cited.)

In support of their motion to dismiss, defendants filed an affidavit showing that at all times after the complaint was filed they had been within the county of San Mateo, of which they were residents, and that service of summons could have been made upon them at any time since the commencement of the action. The affidavits alleged, further, that the defendants had put valuable improvements upon the leased premises. The plaintiff’s counter affidavit showed, as her sole reason for the delay in the serving of summons, that one of the defendants was, in November, 1910, arrested on a charge of murder and that the proceedings against him were pending in the superior court of San Mateo County until September, 1911, when he was acquitted. She states that from the time of his arrest until his acquittal she, the plaintiff, held the proceedings in the present case in abeyance because of her desire not to prejudice him in his defense against so grave a charge.

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