Murray v. Gleeson
Before: Belcher
Synopsis
Service of Summons—Time Limited—Construction of Code—Reasonable Diligence.—Subdivision 7 of section 581 of the Code of Civil Procedure, which provides that an action shall be dismissed “ unless summons shall have been issued within one year and served and return thereon made within three years after the commencement of said action,” does not limit the time for service of the summons to one year after the commencement of the action, but fixes the extreme limit of time both for the service of summons and the return of summons at three years; but the question as to whether there has been reasonable diligence in making the service within the time limited is left an open one to be considered and decided by the court upon the facts of each particular case
Belcher, C. This is an action to foreclose a mortgage on real property.
The complaint was filed and the summons issued on December 26, 1891. The summons was served upon the defendant on April 3, 1893, and on the 12th of that month defendant served notice upon the plaintiff that he would, on May 1,1893, move the court to dismiss the action, on the ground that the summons was not served within the time required by law. At the time named [512]the motion was heard by the court and taken under advisement until the 15th of the same month, when the motion was granted and judgment entered dismissing, the action solely “ on the ground that the summons was not served within one year after the commencement of the action.” From this judgment the plaintiff appeals.
The action of the court was based upon subdivision 7 of section 531 of the Code of Civil Procedure, which was added to the code by an amendment made in 1889, and reads 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 the motion of any party interested therein, whether named in the complaint as a party or not, unless sjimmons shall have been issued within one year, and served, and return thereon made within three years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said three years.”
The respondent contends that this language, when properly construed, means that the summons must be both issued and served within one year after the complaint is filed, and whether this be so or not is the only question presented for decision.
Prior to the amendment in question the statute provided that the summons must be issued within one year after filing the complaint, but there was no express limitation as to the time within which service and return must be made. It was, however, held that the service must be made within a reasonable time, and if not so made that it was ground for a dismissal of the action. (Grigsby v. Napa Co., 36 Cal. 585; 95 Am. Dec. 213; Carpentier v. Minturn, 39 Cal. 450; Eldridge v. Kay, 45 Cal. 49; Lander v. Fleming, 47 Cal. 614; Diggins v. Thornton, 96 Cal. 417.)
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