60 P. 848 | Cal. | 1900
Application for a writ of prohibition. An action to recover a specific sum of money was commenced against the petitioner in the superior court of the county of Modoc by one Healey, September 5, 1896, by filing a complaint on that day. Summons was issued upon the complaint September 4, 1897, and with a copy of the complaint was served upon the defendant (the petitioner herein) August 7, 1899. September 11, 1899, said defendant gave to the plaintiff a notice of motion to dismiss the action upon the ground that more than three years had elapsed since the commencement thereof, and the summons *256
had not been served and return thereon made. The summons, with the officer's certificate of service attached thereto, was delivered to the plaintiff's counsel August 10, 1899, and was retained by him until September 16th, on which day he delivered it to the clerk, and it was then filed in that office, together with the sheriff's certificate of service indorsed thereon. The motion to dismiss the action came on for hearing September 26th, when the above facts were shown to the court and the motion was denied, the judge ruling and holding that the court still had jurisdiction of said action and would proceed therewith until such proceedings were had as would result in a judgment. Petitioner thereupon called the attention of the court to its want of jurisdiction to take any further action of the case, by reason of the provisions of section
The petition for the writ sets forth the foregoing facts, and has been submitted to the court upon a demurrer thereto on behalf of the respondents.
There is no substantial difference between this case and the case of Vrooman v. Li Po Tai,
The application for a peremptory writ is granted.
Garoutte, J., Van Dyke, J., Temple, J., Henshaw, J., and McFarland, J., concurred.