AMF Pinspotters, Inc. v. Peek

Opinion

SHINN, J.* Samuel E. Peek (Peek) appeals from a judgment entered in one of two lawsuits which were consolidated for trial. The first action, brought by AMF Pinspotters, Inc., a corporation, (Pinspotters) against Bimini Bowl, Inc., a corporation, Peek, and Wile Investment Co., a corporation, was a suit on a lease of personal property installed in Bimini Bowl, a bowling establishment, seeking rental payments and damages for [445]goods and services sold. Peek filed his answer on February 21, 1964. Defaults were taken against Bimini Bowl, Inc., and Wile Investment Co. The second action, and the one out of which Peek appeals, commenced by Pinspotters November 20, 1964, was for recovery of personal property and damages. Named as defendants were Peek, individually, Peek and Wile Investment Co., a copartnership, and Wile Investment Co., a corporation. After appellant was personally served with a copy of the summons and complaint on November 27, 1964, individually and as a partner with the corporation, he failed to appear and his default was entered by the clerk on December 22, 1964. The copartnership was also served by service on Peek; it failed to appear; and its default was entered on December 22, 1964. On February 21, 1966, Wile Investment Company made its general appearance by filing a demurrer to the complaint. Pinspotters amended, and Wile Investment Company filed its answer and a cross-complaint. July 11, 1966, Pinspotters filed its answer to the cross-complaint. On October 16, 1968, both cases came to trial, and a motion was made to dismiss the complaint in the second case as to Peek, pursuant to Code of Civil Procedure section 581a, since more than three years had elapsed after the service of the summons and complaint upon appellant, and respondent had failed to have a default judgment entered. The motion was denied, and the trial was commenced. November 21, 1968, the court found that none of the defendants possessed any interest in the personal property and entered judgment for the plaintiff for possession of the personal property and against Peek for $2,086, the cost of removing the same, plus interest.

Appellant contends that section 581a of the Code of Civil Procedure is applicable and that the trial court was without jurisdiction to do other than dismiss the action as to Peek.

Section 581a, in pertinent part, reads as follows: “All actions, heretofore or hereafter commenced, must be dismissed by the court in which the same may be pending, on its own motion, or on the motion of any party interested therein, if summons has been served, and no answer has been filed, if plaintiff fails, or has failed, to have judgment entered within three years after service of summons, except where the parties have filed a stipulation in writing that the time may be extended.”