98 P. 394 | Cal. Ct. App. | 1908
This is a petition for a writ of prohibition to prevent the superior court of the county of Santa Clara from trying a case appealed to said court from a justice's court of said county. The matter is submitted to this court upon the petition and the answer thereto filed by respondent in response to the order to show cause.
The essential facts of the case are as follows:
On the second day of November, 1902, an action was commenced before a justice of the peace in Santa Clara county by the Union Savings Bank of San Jose against Henry Hubbard by the filing of the complaint on said day. The summons was not served on petitioner, the defendant in that action, until December 14, 1905, which was more than three years after the commencement of the action. The summons never was returned to said justice court, but on the tenth day of April, 1906, the defendant therein specially appeared and moved for a dismissal of the action under section
Promptly after the transmission of the case to the superior court of said county petitioner made the same motion for a dismissal of the action, which was by the said court denied, *168 and said court now threatens to proceed to try the cause on its merits.
It is not contended that a sufficient showing was not made in answer to the motion so far as said motion was based on the failure to prosecute the action to judgment with reasonable diligence, as required by section 890 of the Code of Civil Procedure, or that any question of jurisdiction can arise out of the action of the court in that regard. But the contention that the court is without jurisdiction to proceed to try the cause upon its merits, or to take any action therein other than to dismiss the action, is based on the fact that the summons was neither served, nor return made thereon, within three years after the commencement of the action.
Upon the admitted facts of this case the only question, therefore, presented for the determination of this court is whether or not section
The question as to whether or not the provisions of section
Section 890 of the Code of Civil Procedure is contained in title XI of said code, which deals with the proceedings in justice courts.
Section
The provision requiring the dismissal of an action for failure to serve the summons and to make return thereon within three years after the commencement of the action was inserted in section
Although the precise question involved in this case has never before been decided by an appellate court of this state, we think that the rule which should govern has been clearly laid down in two cases. (Odd Fellows' Sav. Bank v. Banton,
The second case above cited is even more in point than the first case. In this case (Weimmer v. Sutherland,
"Now, the power in question here — i. e., the power to relieve from a judgment taken through surprise, excusable neglect, etc. — is expressly given to courts of record by section
A comparison of sections 859 and 473, construed in the case just cited, with sections 890 and 581, involved in the case at bar, demonstrates the controlling effect of the above-cited case upon this case.
Section 859 is in the title dealing with proceedings in justices' courts, and provides for the vacating by justices' courts of judgments entered in said courts. Section
Section 890, like section 859, is in the title dealing with proceedings in justices' courts, and provides for the dismissal of actions in said courts. Section
The suggestion of petitioner that the dismissals provided for by section 890 are without "prejudice to a new action," and that therefore the subject matter of section 890 is different from the subject matter of section
For the reasons above set forth we think the court has jurisdiction to proceed with the trial of the action in question, although the summons, issued out of the justice court, was not served and return made thereon within three years after the commencement of the action.
The temporary restraining order heretofore made by this court is vacated and discharged, and the petition for a writ of prohibition is denied.
Kerrigan, J., and Cooper, P. J., concurred. *172