Carpentier v. Minturn (1870) · DecisionDepot

Carpentier v. Minturn

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

California Supreme Court Jul 1, 1870 No. No. 1,909Published

Before: Rhodes

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Holding. The court held that a trial court does not abuse its discretion by dismissing a complaint and setting aside a summons when the plaintiff fails to serve the papers for more than eight years due to misplacing them.

Issues

Whether the trial court abused its discretion in setting aside a summons and striking a complaint due to an eight-year delay in service.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“There was no abuse of discretion in granting the motion, and, in our opinion, the order was fully justified by the facts presented in the affidavits.”

Synopsis

Pbachce.—-Dismissal pop. Want op Pbosecution.— Where a complaint was filed and summons issued more than eight years before service, a motion by defendant to set aside the summons and strike the complaint from the files was properly granted.

Rhodes, C. J., delivered the opinion of the Court:

The plaintiff having filed his complaint, procured a summons and a certified copy of the complaint, but mislaid them, and did not discover them until after the expiration [451]of more than, eight years. Soon after finding them, he caused them to be served on .the defendants. The excuse for the delay in serving the papers is, that he mislaid and forgot them. The Court, on the defendant’s motion, ordered the summons to be set aside and the complaint to be stricken from the files. There was no abuse of discretion in granting the motion, and, in our opinion, the order was fully justified by the facts presented in the affidavits. (See Dupuy v. Shear, 29 Cal. 241; Reynolds v. Page, 35 Cal. 296; Grigsby v. Napa County, 36 Cal. 585.)

Judgment affirmed.

Wallace, J., being disqualified, did not participate in the decision.

Carpentier v. Minturn

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