Peck v. Agnew

HARRISON, J.

—This action was commenced in the superior court December 12, 3895, against a number of defendants, by the plaintiff, as special administratrix of the estate of Martina Castro Depeaux, deceased, for the purpose of having it declared that they have no interest in or title to the land described in the complaint, and that it belonged to the estate of her intestate, and that she recover possession thereof. It .does not appear from the record, except inferentially, whether a summons was ever issued upon the complaint, or that it was ever served upon either of the defendants; but within ten days after the commencement of the action a demurrer was filed on behalf of several of the defendants. It docs not appear that any action has been taken by the court upon this demurrer. December 19/ 1898, a motion was made on behalf of seveH of the defendants named in the complaint who had not demurred thereto to set aside the summons and the service thereof, and to dismiss the action upon the ground, among others, that the summons had not been returned within three years from the commencement of the action. At the hearing the court granted their motion and dismissed the action, and. the plaintiff has appealed therefrom.

The appellant does not controvert the right of the persons who made the motion to have the action dismissed as to them, nor does she object to the action of the court, so far as it may be limited to them. At the time the motion wa^ granted she exjcepted thereto, “upon the ground that said court had no jurisdiction to dismiss said action, except as to the defendants who had not or who did not appear in said action by the demurrers,” and she now contends that to the extent that the '

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dismissal purports to embrace those who had appeared in the action, it was erroneous, and that in this respect the judgment should be modified.

With this contention oí the appellant we agree. The failure of the plaintiff to return the summons did not affect her right to continue the action against those defendants who had demurred to the complaint. It is declared in the concluding sentence of section 581 of the Code of Civil Procedure that “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.” This provision does not prevent a dismissal when some of the defendants have appeared, as to those who have not appeared, nor does it require an appearance by all of the defendants in order to deprive the court of all power of dismissal, but it is. to be construed as authorizing a dismissal as to those defendants who have not appeared and a prosecution of the action against those who have made such appearance whenever the court would be authorized to render a judgment against them in the absence of the other defendants. The defendants who demurred were entitled to have the issue presented by their demurrer passed upon by the court, and had chosen attorneys for that purpose, as well as to represent them in all proceedings that might be had in the action. It was not competent for the court to dismiss them out of the action upon the motion of other defendants with whom they were in no wise connected. Nor did the fact that the motion was made by the same attorneys that represented them in the demurrer affect their rights. The motion was made on behalf only of defendants who had not demurred— seven in number—and without any notice to the demurrants.