241 P. 570 | Cal. Ct. App. | 1925
On writ of prohibition. On the twenty-fifth day of June, 1921, Brown, special administrator of the estate of Murray, filed his complaint against Anna M. Sauer and others for the foreclosure of a mortgage on real property in San Diego County. On the twenty-ninth day of December, 1924, pursuant to notice duly given, Joseph G. Sauer, petitioner herein, who was a defendant in that action, presented to the Superior Court his motion for an order to dismiss said foreclosure action and for judgment of dismissal thereof. The stated ground of the motion was as follows: "That more than three years have elapsed since the commencement of said action, and a summons has not been served and return thereon made within three years after the commencement of said action, according to the provisions of section 581a of the Code of Civil Procedure of the State of California. . . ." There is no contention that the summons in said action was not issued promptly. The motion was heard upon affidavits and the record of the action. The Court denied that motion, and in connection therewith asserted its jurisdiction to further proceed in said action, and will so proceed unless prevented by peremptory writ of prohibition.
Contending that the Superior Court is without jurisdiction to proceed further in said action, petitioner relies upon the following provisions of section 581a of the Code of Civil Procedure: "No action heretofore or hereafter commenced shall be further prosecuted, and no further proceedings shall be had therein, and all 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 motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action. But all such actions may be prosecuted, if 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; . . ."
The affidavits and record show that no appearance in the action was made by the petitioner within three years *582 from the time of commencement of the action. It does appear from the affidavits, and we assume the fact to be, that on November 13, 1924, petitioner, as defendant in said action, signed and delivered to plaintiff's attorney a document wherein he stated that about one week after the action was commenced, said defendant J.G. Sauer and his codefendant, Anna M. Sauer, secured a continuance and postponement of all proceedings therein by agreement with the plaintiff that they be given time to refinance the loan and pay off the note and release the mortgage. "And that any additional delay that may be taken would be for the same purpose, and these defendants will not take advantage of such delay." Also there is other evidence that said defendants had so obtained a continuance and postponement of all proceedings in the action, but there is no evidence that any agreement made by them in that connection was made in writing.
[1] Section 581a was added to the Code of Civil Procedure in the year 1907. But it was not new legislation. The same provisions, without any material difference, had been contained in section 581, as subdivision 7 thereof, for many years prior to 1907. During this long period of time, these provisions of the code have been the subject of discussion by the supreme court in many cases. Some of the principal cases were reviewed in Davis
v. Superior Court,
Respondent attempts to establish a difference between that part of section 581a which deals with cases where the summons has not been issued within one year, and the remainder of the section. The contention is that that part of the section which declares that the action shall not be further prosecuted and no further proceedings shall be had therein does not apply except in cases where the summons has not been issued within one year; that where the defect consists only in the fact that the summons has not been served and return made thereon within three years after the commencement of the action, the only penalty is that the action must be dismissed. The argument is that even though it be conceded that in the first instance the court is without jurisdiction to proceed further, it retains its jurisdiction in the second instance. In view of the fact that in several decisions the rule adverse to respondent's contention has been enforced without regard to this attempted distinction, we do not feel at liberty to make such distinction at this time. [2]
Rules of practice which have been so long established upon a definite understanding of a statute should not be disregarded without a compelling reason. For a list of cases in which the rule of section 581a has been applied to the full extent in cases where the summons (although issued promptly at commencement of action) was not served and returned within the prescribed period of time, see Bellingham Bay Lumber Co. v. Western AmusementCo.,
[3] Respondent further contends that the stipulation signed by petitioner, to which we have referred, was a waiver of petitioner's right to ask for a dismissal of the action, and that this waiver is sufficient to authorize the Court to proceed with the action. To adopt this view of the matter *584
would be, in effect, to deny that at the time when said stipulation was made the Court had lost jurisdiction of the case, or to hold that, by stipulation of the parties, a jurisdiction which has been lost can be resumed. Neither of these alternatives can be accepted. There have been several instances in which it has been sought to avoid the effect of section 581a (or subdivision 7 of section 581, as formerly in force), by showing that the delay and failure to serve summons was at the solicitation of the defendants or pursuant to stipulations made by them. In Siskiyou County Bank v. Hoyt,
Let the peremptory writ issue.
Houser, J., and Curtis, J., concurred.
A petition by respondents to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 14, 1925. *585