69 P. 291 | Cal. | 1902
Appeal from judgment. It is claimed by defendant that the court erred in denying his motion to dismiss the action, and in ordering his default entered after denying the motion.
The action was brought to recover on a judgment, and was commenced May 29, 1896.
The summons was issued May 22, 1897, and served March 24, 1898. On April 23, 1898, the defendant gave notice of motion to vacate and set aside the service of the summons, and for an order dismissing the action on the ground of want of diligence in prosecuting the same. Affidavits were filed by both parties, and, after various continuances, the matter was finally submitted, and the court, on August 25, 1898, made the order denying the motion. *557
We have examined the affidavits used on the hearing, and do not think the court abused its discretion in denying the motion. These motions are addressed to the sound legal discretion of the court below, and it would require a very plain case of abuse of discretion to justify us in reversing the order. Certainly the time that elapsed in this case would not show such an abuse of discretion. The summons was issued within the year and served within less than a year thereafter. No injury appears to have resulted to defendant, nor was he prevented by the delay from paying the judgment. Neither was it error for the court to order the defendant's default entered. More than five months had elapsed since the service of summons upon him. He had not appeared, except for the purpose of making the motion to dismiss. It is true that he had procured an order from the judge giving him one day to appear and plead after the ruling should be made on his motion. But this order was an attempt to extend the time to plead beyond thirty days without the consent of the plaintiff, and was therefore beyond the jurisdiction of the court and void. (Code Civ. Proc., sec. 1054; Baker v. Superior Court,
The case of Willson v. Cleaveland,
The judgment should be affirmed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is affirmed.
McFarland, J., Henshaw, J., Temple, J.