77 P. 1037 | Cal. | 1904
The trial court granted defendant's motion to dismiss the action on the ground of unnecessary delay in serving summons. The complaint duly pleaded a former judgment between the same parties, in the same court, as the cause of action. An execution had been taken out, but was returned nulla bona. The summons in the present action was issued on the day the complaint was filed, and was served two years and one month thereafter. Plaintiff appeals from the judgment of dismissal.
In support of the motion the affidavit of defendant Wood *427 was read, in which he stated that his place of residence was then, and had been for several years, the same as that of plaintiff's attorney, and that they were well acquainted with each other, and had met frequently during the past five years, and that defendant's place of residence was also well known to plaintiff; that "during the past two years prior to the service of said summons upon affiant, affiant had conversed with said plaintiff about the matters mentioned in the complaint in this action"; that plaintiff at no time informed affiant of the commencement of this action; and that the summons was not placed in the hands of any officer for service until the day it was served. Defendant also introduced the complaint and summons in the action.
Plaintiff introduced the judgment-roll in the original action against defendant, consisting of the complaint, answer, findings, and judgment; also the execution issued on the judgment and return nulla bona. Plaintiff's attorney was then sworn and testified that a writ of attachment was sued out at the time summons was issued, and one reason why summons had not been served earlier was, that "it was the desire of plaintiff to hold back service and knowledge of suit from defendant to see if it was possible to discover anything on which a writ of attachment would lie." He further testified: "Shortly after this action was commenced I received a letter from the plaintiff asking me to withhold service of summons until further orders from him, as the defendant had made a proposition to him to compromise the judgment heretofore rendered against him, and plaintiff did not wish to embarrass the settlement by pushing the litigation. After several months plaintiff notified me that the compromise had fallen through, and to proceed with the suit, which I did at once." He also testified that the suit was brought upon a judgment obtained in that court, no part of which has ever been paid. The testimony of plaintiff's attorney was not contradicted or denied by defendant, but was corroborated by defendant's affidavit. This judgment imported absolute verity, and besides it appeared without conflict that no part of it had been paid.
Before the amendment of section
In the case of Eldridge v. Kay,
The judgment upon which the action is brought is unpaid. An effort to compromise that judgment was in progress by the parties after the summons issued, and for this reason plaintiff caused the delay in the service. To have served the summons pending these negotiations might, as plaintiff feared, embarrass the settlement. It seems to us that the delay was reasonably accounted for and excused, and that the order of the court did not tend to subserve, but rather to impede or defeat, the ends of substantial justice.
In the case of Herman v. Pacific Jute Mfg. Co.,
In the present case not only was the indebtedness admitted and no defense to it suggested, but the delay was explained upon the reasonable grounds that the parties were endeavoring to effect a compromise. Some consideration also is due to the fact, though in itself insufficient, that plaintiff in the original action recovered judgment for the estate of which he was administrator and is now seeking to keep that judgment alive for said estate.
In our opinion, the discretion of the court was improperly exercised, and it is therefore advised that the judgment of dismissal be reversed and the cause remanded.
Cooper, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment of dismissal is reversed.
*430Shaw, J., Angellotti, J., Van Dyke, J.