Stanley v. Gillen

CHIPMAN, C. The complaint was filed May 10, 1893. The summons was served on all the defendants except Gillen, who has not been served, on May 4, 1896. On May 5, 1896, defendant Stivers served notice of motion to dismiss the action on the ground of unreasonable delay in the service of the summons and in the prosecution of the action. Defendants Lial and Lyons gave a similar notice, and on June 1, 1896,-the court rendered judgment of dismissal as to all the defendants; as to Gillen on the motion of the court. The hearing was upon the papers on file in the action and upon affidavits. Plaintiff appeals from the judgment and upon bill of exceptions.

There is no dispute as to the facts. The only question is whether there was abuse of discretion. Section 581, subdivision 7, of the Code of Civil Procedure provides that no action shall be further prosecuted and all actions shall be dismissed unless summons shall have issued within one year and shall have been served within three years after the commencement of the action. Before this section was amended, the power to dismiss the action for the causes named was wholly discretionary. How it is com[178]pulsory where the summons is not issued within one year and served within three years. The code, however, does not mean that the plaintiff may have the full time in all cases; it is still discretionary with the court to dismiss, as before the amendment, even though summons be issued and served within the time. The eases are numerous illustrating the circumstances under which the discretion, as exercised by the lower court, will be affirmed or reversed, but they furnish no fixed or certain rule, for the obvious reason that no two eases present the same facts. “Each particular case presents its own peculiar features, and no ironclad rule can justly be devised applicable alike to all.” (First Nat. Bank v. Nason, 115 Cal. 626.)

The showing made by defendants in support of their motion is very brief; it is that plaintiff and defendants served are well acquainted with each other, and reside about three miles apart and have met frequently—Stivers and plaintiff at least monthly; that defendants’ residences were well known to plaintiff, and they had resided where they now reside in Alameda county for over twenty years, and that there is no good reason why they were not sooner served with summons. They do not deny knowledge of the pendency of the action, and it is deposed, upon information and belief, that defendant Stivers “knew that said action had been brought,” but no similar statement is made as to the other defendants. The motion was opposed by the affidavit of one B. F. Marshall, who claims upon information to be an heir at law of plaintiff’s intestate and her deceased husband, Earl Marshall, who died intestate in said county. One of the plaintiff’s attorneys also makes affidavit. The complaint charges fraud and undue influence on the part of defendants resorted to by them to compass the conveyance, without consideration, to them of certain real property belonging to said Earl Marshall in his lifetime. The complaint goes back to the year 1828, when defendant Stivers, as a child of three years, was taken into Marshall’s family and thence to manhood was supported by Marshall and treated as one of the family; it avers how Stivers gradually attained undue influence over his foster parent; how in 1865 Marshall became converted to Mormonism; how in 1879 Gillen came upon the scene and by reason of his religious fellowship with Marshall was able to and did assist Stivers in his design