Davis v. Hart

TEMPLE, J. This action was commenced against George S. Jordan July 1, 1886, by filing a complaint and issuing a summons thereon. The action was upon a promissory note, dated July 1, 1882, due one year after date, without grace. The summons was not served. Defendant then resided, as plaintiff knew, in Sierra county in this state. The suit was commenced on the very last day upon which it could have been brought to avoid the bar of the statute of limitations. That purpose accomplished, plaintiff rested upon his oars, and seven months thereafter defendant died. Ho administrator was appointed on the estate of Jordan until April, 1896, when plaintiff procured the issuance of letters to defendant. Afterward, the first thing done in the case, the court of its own motion, and without the knowledge of defendant, dismissed the action for want of prosecution. The first appearance in the action on the part of the plaintiff after the issuance of summons was on the twelfth day of June, 1896, in a successful motion to vacate and set aside the judgment so entered. At the same time an order was made substituting Amos Hart, administrator of the estate of Jordan, as defendant, and the clerk was directed to issue a summons directed to the said defendant. The summons was issued and served, and the defendant, appearing specially, moved to quash the summons on the ground that the same was unauthorized by the statute. The motion was denied on the fifteenth day of August, 1896, and defendant excepted. On the fifteenth day of September, 1896, plaintiff filed a supplemental complaint, alleging the death of defendant Jordan, and that the claim had been duly presented to the administrator, and that the administrator rejected the same on the eleventh day of April, 1896. After the motion to dismiss had been denied, defendant demurred to the amended and supplemental complaint, and also answered, always reserving the objection to the further prosecution of the case on the ground that summons was not served, and was not returned within three years after the commencement of the action. The demurrer was overruled, and the case came to a trial, defendant objecting that the court had lost jurisdiction [386]of the case, and insisting that the same should not be further prosecuted, but should be dismissed as provided in section 581 of the Code of Civil Procedure. The court, however, proceeded, against the protest of the defendant, to try the case, and judgment was for the plaintiff. Defendant appeals from an order denying a new trial, and still insists upon his objection that the court should have dismissed the case under section 581 of the Code of Civil Procedure.