Lander v. Flemming
Synopsis
Notice oe Aeeeabance.—A notice, that the defendant appears in the action for the sole purpose of making a motion to quash the summons, is a sufficient appearance to entitle the defendant to be heard upon the motion.
Dismissal oe Action.—When the complaint was filed and the summons issued in October, 1870, and the summons was served in January, 1873; Held, that a prima facie- case of lack of diligence in prosecuting the action existed, and that, in the absence of proof on the part of the plaintiff to excuse the negligence, the Court should dismiss the action.
By the Court: 1. The notice of appearance served on the plaintiff— “now comes the above-named defendant, and appears in the said action for the sole purpose of making a motion to quash the summons in, and dismiss, said action ’’—was a sufficient appearance to entitle the defendant to be heard upon the motion.
2. The facts appearing of record in the Court below, viz: that the complaint was filed- and the summons issued in October, 1870, and that the summons was not served until January, 1873—made a prima facie case of lack of diligence upon the part of the plaintiff in the prosecution of the action, - and which it was his duty to overcome, at the hearing of the motion, by showing the circumstances, if any, to excuse his apparent tardiness in pursuing the defendant. He, however, made no attempt in this direction, and we think that the action was properly dismissed.
Judgment affirmed. Bemittitur forthwith.
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