Siskiyou County Bank v. Hoyt

HAYNES, C.

— Appeal from an order and judgment dismissing the action, and from an order denying appellant’s motion to vacate the judgment of dismissal.

Appellant, the Siskiyou County Bank, commenced an action against Perry Hoyt and Elizabeth Hoyt on October 5, 1895, to foreclose a mortgage executed by them to the bank on October 6,1891. A summons was issued one day before the expiration of a year after the filing of the complaint, but the summons not having been served within three years after the • commencement of the action, and no appearance having been made, Elizabeth Hoyt, one of the defendants, moved the court to dismiss the action. After the notice of motion to dismiss was served, but before it was heard, the summons was served on respondent, the service being made on April 26, 1900. The motion was heard April 28th, and judgment dismissing the action was entered May 4,1900.

Appellant filed a very long affidavit in opposition to the motion, showing' the origin of the debt, and most unusual indulgence to respondents; that the delay and failure to serve the summons was at their earnest solicitation; that before the -expiration of the time limited by- the statute for the service of the summons, the propriety of serving it was suggested by the bank, but at the solicitation of respondents it was not served, 141 as they then stated that the bank need not serve any further papers upon- them; that it could at any time take judgment in said case.”

Subdivision 7 of section 581 of the Code of Civil Procedure, as amended in 1897, is as follows: —

“7.

And no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be

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had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within one year; and all such actions shall be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such actions may be prosecuted if appearance has been made by the defendant or defendants within said three years, in the same manner as if summons had been issued and served.” (Stats. 1897, p. 98.) This subdivision, as originally enacted in 1889, was substantially the same. (Stats. 1889, p. 398.)