Grant v. McArthur

These two appeals were submitted together. L. A. No. 1013 is an appeal by plaintiffs from a judgment of the superior court dismissing the action. It is presented upon the judgment-roll and a bill of exceptions. The motion to dismiss was made by defendant Gough, January 20, 1900, upon the ground that “the summons issued in above-entitled action was not served and return thereon made within three years after the commencement of the said action, and that no appearance in said action on the part of defend

Subdivision 7 of section 581 of the Code of Civil Procedure is as follows: “And 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 shall 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 been issued within one year, and all such actions shall 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 defendant or defendants, within said three years in the same manner as if summons had been issued and served.” The facts in the case at bar, as shown by the judgment-roll and the bill of exceptions, are these: The complaint was filed January 11,1897, and, of course, the three years within which the summons must have been returned as provided in the code expired January 11, 1900. On the last-named day the summons had not been returned, and there had been no appearance for either of the defendants. Some of the defendants had been served in 1897; defendant McArthur was served January 5, 1900; and appellant Gough was served January 10,1900, and on January 11,1900, an affidavit of service on him was filed,—the affidavit being a separate document, not attached to any summons. On January 11,1900, a copy of the summons was filed, and on January 15, 1900, the original summons was for the first time returned and filed. There are in the printed transcript some written consents of some of the defendants that judgment may be taken against them, but they are not parts of the judgment-roll or bill of exceptions, and cannot therefore be considered; moreover, they were made after the expiration of the three years. There is in the bill of exceptions a stipulation that appellant might have a certain time to answer or demur; but if this could be considered as an “appearance” within the meaning of the said section 581, it was of the date of January 15, 1900, and therefore not “within said three years.”

L. A. No. 1038 is an appeal by plaintiffs from an order refusing to set aside the judgment above referred to. After the judgment of dismissal had been entered plaintiffs moved the court to set that judgment aside, on the ground of excusable neglect, etc., and from an order denying this motion this appeal (No. 1038) is taken.

Respondent contends that the order refusing to set aside the judgment is not appealable, upon the well-established general rule that an appeal does not lie from an order refusing to set aside a judgment or order which is itself appealable; that the only exception to the rule is where the moving party did not have an opportunity to present his alleged rights when the original judgment or order was under consideration; and that the exception does not apply to the case at bar, because plaintiffs not only had the opportunity to present their alleged rights when the motion to dismiss the judgment was under consideration, but actually did so present them at that time. We see no obvious answer to this contention; but it is not necessary to absolutely determine that question, because there is nothing in the record to show that the court

The judgment appealed from in L. A. No. 1013 and the order appealed from in L. A. No. 1038 are both affirmed.

Temple, J., and Henshaw, J., concurred.

Hearing in Bank denied.