Grant v. McArthur

McFARLAND, J.

These two appeals were submitted together. L. A. No. 1013 is an appeal by plaintiffs from a judgment of the superior court dismissing the action. It is presented upon the judgment-roll and a bill of exceptions. The motion to dismiss was made by defendant Gough, January 20, 1900, upon the ground that “the summons issued in above-entitled action was not served and return thereon made within three years after the commencement of the said action, and that no appearance in said action on the part of defend

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ant Gough, or any of said defendants, has been made within said three years.”

Subdivision 7 of section 581 of the Code of Civil Procedure is as follows: “And no action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be 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 defendant or defendants, within said three years in the same manner as if summons had been issued and served.” The facts in the case at bar, as shown by the judgment-roll and the bill of exceptions, are these: The complaint was filed January 11,1897, and, of course, the three years within which the summons must have been returned as provided in the code expired January 11, 1900. On the last-named day the summons had not been returned, and there had been no appearance for either of the defendants. Some of the defendants had been served in 1897; defendant McArthur was served January 5, 1900; and appellant Gough was served January 10,1900, and on January 11,1900, an affidavit of service on him was filed,—the affidavit being a separate document, not attached to any summons. On January 11,1900, a

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of the summons was filed, and on January 15, 1900, the original summons was for the first time returned and filed. There are in the printed transcript some written consents of some of the defendants that judgment may be taken against them, but they are not parts of the judgment-roll or bill of exceptions, and cannot therefore be considered; moreover, they were made after the expiration of the three years. There is in the bill of exceptions a stipulation that appellant might have a certain time to answer or demur; but if this could be considered as an “appearance” within the meaning of the said section 581, it was of the date of January 15, 1900, and therefore not “within said three years.”