Taylor v. Hizer

Opinion

WHELAN, Acting P. J. Dale C. Taylor, plaintiff, has appealed from a judgment dismissing his action based upon the granting of a motion to dismiss under Code of Civil Procedure section 581a.

[848]In granting the motion, the court specified the ruling was not based upon Code of Civil Procedure section 583, subdivision (b), the provisions of which also were urged as a ground of the motion.

The action was filed on October 20, 1966, for personal injuries alleged to have been caused by a collision on March 2, 1966, in San Diego County, between two automobiles, in one of which plaintiff was a passenger, which was being operated with the consent of Richard Allen Hizer, the owner thereof.

Summons was issued on October 20, 1966.

On December 9,1971, Hizer’s answer was filed.

On December 13, 1971, Hizer’s motion to dismiss was filed based upon Code of Civil Procedure sections 581a and 583, subdivision (b).

At the time the action was filed, Code of Civil Procedure section 581a so far as relevant provided: “[A]ll actions heretofore or hereafter commenced must be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, . . . unless the summons shall be served and return thereon made within three years after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended. But all such actions may be prosecuted, if general appearance has been made by the defendant or defendants, within said three years in the same manner as if summons had been issued and served; provided, that, . . . no "dismissal shall be had under this section as to any defendant because of the failure to serve summons on him during his absence from the State . . . .”

In 1969 section 581a was amended effective as of July 1, 1970, so that in relevant part it read and ever since has read: “(a) [A]ll actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named as a party or not, unless the summons on the complaint is served and return made within three years after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended or the party against whom the action is prosecuted has made a general appearance in the action.