Christina v. Baker

WOOD, J. Plaintiff commenced this action on June 17, 1935, to recover a judgment against the four defendants who were makers of a promissory note in which they jointly and severally promised to pay the sum of $2,750. A fifth defendant, Steadman G-. Smith, was sued as guarantor of the note. On the same date the clerk issued a summons directed to all of the defendants. Bruce L. MacLean, respondent herein, was not served with the summons. The action went to trial on May 14, 1937, against defendants Smith and Helen L. MacLean and judgment was entered against these two in the sum of $2,288.17. Thereupon an affidavit was filed on behalf of plaintiff in accordance with the provisions of sections 989, 990 and 991 of the Code of Civil Procedure. On May 18,

1937, the clerk issued a summons directed to Bruce L. Mac-Lean and Lela S. Baker directing them to show cause. why they should not be bound by the judgment recovered by plaintiff against defendants Smith and Helen L. MacLean on May 14, 1937. This summons was served on Bruce L. MacLean on March 11, 1938, and a return was made thereon on April 14, 1938. By special appearance a motion was made on March 28, 1938, to quash the summons and the service on Bruce L. MacLean. On April 7, 1938, the court granted the motion of Bruce L. MacLean to quash the summons and service thereof and on April 13, 1938, the court denied a motion by plaintiff to set aside the order quashing the summons. Plaintiff appeals from the orders made on April 7, 1938, and April 13, 1938.

In section 406 of the Code of Civil Procedure it is provided that at any time within one year after a complaint is filed a plaintiff may have a summons issued. In section 414 of the Code of Civil Procedure it is provided that when the action is against two or more defendants jointly or severally liable on a contract, and the summons is served on one or more, but not on all of them, the plaintiff may pro[414]ceed against the defendants served in the same manner as if they were the only defendants. In section 581a of the Code of Civil Procedure it is provided that the court must dismiss an action “unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action”.

In title XIV, chapter 1, Code of Civil Procedure, under the heading, Proceedings Against Joint Debtors, appear several sections, 989, 990 and 991, by which provision is made for summoning joint debtors to show cause why they should not be bound by judgments theretofore entered. Section 990 is as follows: “The summons specified in section 989 shall be issued by the clerk, or by the justice if there be no clerk, upon presentation of the affidavit specified in section 991, and must describe the judgment, and require the person summoned to show cause why he should not be bound by it, and must be served in the same manner, and returnable within the same time, as the original summons. It is not necessary to file a new complaint.”