Kreiss v. Hotaling

Paterson, J. The appeal in this case is from a judgment dismissing the action on motion of plaintiff on the ground that there had been an unreasonable delay in service of the summons. The action was commenced November 11, 1889, and summons was issued on the same day, but was not served on defendant until October 12,1891. Upon the hearing of the motion it was shown that the defendant’s places of business and residence were well known, and that he could have been found at any time, except on three occasions, when he was temporarily away from the city; that he had repeatedly conversed with-the attorney for the plaintiff after the commencement of the action. The counteraffiadvits of plaintiff show that the plaintiff delayed the service of the summons because he desired not to put the defendant to the expense and annoyance of a trial, or even answering in the case; that all the matters involved in this action had been the subject of arbitration between the parties, which had resulted in an award and judgment in favor of the defendant; that if said award shduld stand, it would finally dispose of all the matters in dispute between the parties, but on motion of the plaintiff it bad been held to be invalid as a judgment of the court; that the defendant had appealed from the decision of the court, holding that it was not good as a statutory award and judgment; and that it would be a useless expense to proceed with the trial of this action during the pendency of said appeal. It appears from the affidavit of counsel for plaintiff that “on or about November 11, 1889, when this action was commenced by filing the complaint and issuing the summons thereon, the situation of the controversy between the plaintiff and the defendant was such that it was deemed necessary to file the said complaint so as to avoid any possible plea of the statute of limitations.” The appeal referred to was taken in May, 1889. The matter was argued in this court in August, 1891, but was not determined until a few days before the motion was made -in the court below [385]to dismiss the action. At the conclusion of his affidavit the defendant stated that counsel for the plaintiff visited his house to examine the work done and materials furnished by the plaintiff, compensation for which forms the basis of this action, and said to defendant as he left the latter’s residence: “ You have been wronged, and I can see it, and I will never serve those papers.”

Upon this showing we cannot say that the court below abused its discretion in granting the motion to dismiss. It is probable that if the motion had been denied, and the defendant had appealed, we would have said that the court did not abuse its discretion in denying the motion. “ To say that the law allows no latitude for the exercise of discretionary power, is to deny that the power is discretionary. The only limitation that the law has placed upon the exercise of discretionary judicial power is that it must not be abused.” (Clavey v. Lord, 87 Cal. 419.) It was for the court, in the exercise of its discretion,. after hearing the statements of the parties, to say whether the plaintiff was acting in good faith and had exercised reasonable diligence. The facts that the statute of limitations would have run against plaintiff’s cause of action unless the suit had been commenced in November, 1889, and that the appeal from the order of the court below granting a perpetual stay of execution on the judgment proceeding was pending, are immaterial. (Simmons v. Keller, 50 Cal. 38.)