Dupuy v. Shear

California Supreme Court Jul 1, 1865Published

Before: Sawyer

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Holding. The court held that a summons issued after the statutory time limit was invalid and that the trial court properly exercised its discretion to strike a complaint for lack of prosecution after a nine-year delay in service.

Issues

Whether a summons issued after the one-year statutory limit is valid under the Practice Act.
Whether the court has the authority to strike a complaint for want of prosecution when a plaintiff fails to serve process for nine years.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The summons vacated was issued long after the time limited, and, therefore, not in pursuance, of its provisions.”

“There was a degree of laches—a want of diligence in prosecuting the suit instituted, that is contrary to the spirit of our laws, and which ought not to be encouraged, or even tolerated.”

“We see no good reason why the Court afibér the commencement of a suit may not dispose of it by.striking the complaint from its files when the plaintiff has failed for many years to take any effective measures to procure a service”

Synopsis

Mode of commencing Suits. — The mode of commencing suits and acquiring . jurisdiction of the parties is controlled by the practice Act, and not by the practice which prevailed at common law.

Time within which Summons must be Issued.—Since the amendment of 1860 to the one hundred and twenty-third section of the Practice Act, the Clerk is not authorized to issue a summons in an action, without an order from the Court, after the expiration of, one year from the filing of the complaint. This principle applies as well to causes in which the complaint was filed before, as to those in which the complaint was filed after the amendment took effect.

Summons ordered to be Issued by the Court.—If the Court is authorized to direct a summons to issue after the expiration of the year, the exercise of the power rests in the legal discretion of the Court, and its action will not be set aside on appeal unless it clearly appears that the discretion was not soundly exercised.

Order of Court striking out Complaint.—Where a plaintiff commences an action by filing a complaint and issuing summons, but makes no service on the defendant until nine years have elapsed, an order of the Court,. made on defendant’s motion, striking out the complaint for want of prosecution, is not such an abuse of discretion as to justify the appellate Court in reversing the order.

By the Court, Sawyer, J. The complaint in this case was filed and summons issued thereon on the 26th of July, 1855. A suit was, therefore, commenced on that day within the provisions of the Statute of Limitations, and also within the provisions of section twenty-two of the Practice Act. But no service was had, and, consequently, no jurisdiction of the persons of the defendants was acquired. The action remained in that condition without any further steps having been taken till October 8th, 1864—a [239]period of more than nine years. On the last named day the plaintiff, on an affidavit stating the filing of the complaint, the issuing of the summons thereon, and that said summons was lost by the Sheriff, procured from the Judge at chambers, on ex parte application, an order that another summons issue. The summons thus issued having been served, the defendants moved to set aside said summons as having been improvidently issued, and to strike the complaint from the files of the Court for want of prosecution. The motion was heard on affidavits and counter affidavits, and granted by the Court. The appeal is from the order setting aside the summons and striking the complaint from the files.

Mode of commencing suits.

The Practice Act prescribes the mode of commencing suits, and acquiring jurisdiction of the parties. The proceeding is controlled by its provisions, and not by the rules of practice which prevailed at common law. When this suit was instituted section twenty-two provided, that “ a suit shall be commenced by the filing of a complaint with the Clerk of the Court in which the action is brought and the issuing of a summons thereon.” Section twenty-three, as it then existed, also provides, that “ the Clerk shall indorse on the complaint the day, month and year the samé is filed; and at any time after the filing the plaintiff may have a summons issued.” The act of filing a complaint, and issuing the summons were both performed, and a suit was, therefore, commenced. But no service was made, and no jurisdiction of the defendants acquired.

When summons may issue.

In 1860 section twenty-three was amended so as to read as follows : “ And at any time within one year after the filing of the same the plaintiff may have a summons issued.” These are the only provisions prescribing the mode of commencing suits and authorizing the issue of a summons. The summons authorized by section twenty-three to be issued, whether one [240]

Dupuy v. Shear

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