Sharpstein v. Eells (1901) · DecisionDepot

Sharpstein v. Eells

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 30, 1901 No. S.F. No. 2340.Published

Before: Cooper

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Holding. The court held that an action must be dismissed if the summons is not served and returned within three years of the commencement of the action, as mandated by the Code of Civil Procedure. The entry of a default does not preclude a defendant from moving to dismiss the action for failure to comply with these statutory requirements.

Issues

Whether an action must be dismissed when the summons is not served and returned within three years of commencement.
Whether a defendant may move to dismiss an action for failure to serve and return the summons within the statutory period after a default has been entered.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The language of the statute is plain and mandatory.”

“The statutory mode not having been pursued in time, the right given to respondent to have the action dismissed was absolute.”

“Under the statute, the summons not having been served and return made within the three years, it was the imperative duty of the court to dismiss the action.”

Synopsis

APPEAL from a judgment of the Superior Court of Napa County. E. D. Ham, Judge.

The facts are stated in the opinion.

COOPER, C.

— This is an appeal from an order dismissing, the action as to respondent. The summons was issued October 26, 1895, but was not served until February 6th, nor returned until February 17, 1900. On the last-named day the respondent not having appeared or answered, her default was entered.

On March 12, 1900, upon motion of respondent’s counsel, the court made an order dismissing the action as to her, upon the ground that the summons was not served, filed, or returned within three years after its issuance, as required by subdivision 7 of section 581 of the Code of Civil Procedure. The action of the court was correct. The question has so often been discussed by this court, that we deem it useless to do more than refer to the cases. (

Vrooman

Li Po

Tai, 113 Cal. 305;

Davis

[508]

Hart,

123 Cal. 385;

Cooper

Gordon,

125 Cal. 297;

White

Superior Court,

126 Cal. 247;

Modoc Land etc. Co.

Superior Court,

128 Cal. 255.)

It is urged that the respondent did not make the motion until after her default had been entered, and that it was then too late. The language of the statute is plain and mandatory. No action “shall be further prosecuted, and no further proceedings shall be had therein,” unless the summons shall have been issued within one year, and all actions

Sharpstein v. Eells

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Synopsis

COOPER, C.

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