Pease v. City of San Diego

MUSSELL, J. This is an appeal from a judgment and order dismissing an action under the provisions of section 581a of the Code of Civil Procedure.

[708]Plaintiff brought this action on October 1, 1941, to quiet his title to real property in San Diego. Summons in the action was served on the defendant city of San Diego on September 19,1944, but it was not returned to the court until October 17, 1944.

On October 13, 1944, the city filed a motion to dismiss the action pursuant to the provisions of section 581a of the Code of Civil Procedure upon the ground that the summons had not been returned within three years after the commencement of the action. This motion was denied by the trial court and on December 11, 1944, the city filed in this court a petition for a writ of prohibition, based on the contention that the superior court had lost jurisdiction to proceed with the case since summons had not been returned within three years. That petition was denied, without opinion, on December 19, 1944. The city then filed a petition for hearing in the Supreme Court which was denied on February 15, 1945. In the meantime, and on December 21, 1944, on application of the plaintiff, the clerk of the trial court entered the default of the city.

On February 26, 1945, the city served on plaintiff, and filed in the clerk’s office, a notice of motion to set aside its default together with its answer in which the city, among other matters, alleged that the court was without jurisdiction to proceed with or try any of the issues contained in the complaint. On March 13, 1945, the trial court entered an order granting the motion to set aside the default of the city and the judgment which had been entered thereon, but reserved for future consideration the question as to the jurisdiction of the court to proceed with the action. The court further ordered the city’s answer filed, and that the action be consolidated with one which had been filed by the city against plaintiff to quiet title to the same property. On appeal to this court the order of the trial court setting aside the default was affirmed. (Pease v. City of San Diego, 74 Cal.App.2d 929 [169 P.2d 973].)

The instant action, and that filed by the city against plaintiff, were set for trial on June 24, 1947, at which time the city repeated its motion to dismiss the instant action on the same grounds stated in its motion of October 13, 1944. The trial court granted the motion and on June 3, 1948, signed a judgment of dismissal in which the court found that the summons had not been served, and return thereon made within three years after the commencement of the action; that defendant city had not been absent from the state or secreted itself within the state to prevent service of summons upon itself within