Hyperlawhypertext legal databasebeta Marks v. Keenan 148 Cal. 161

← Cases

Marks v. Keenan

148 Cal. 161 Court Department Two. Decision date 1905-10-23 Docket S. F. No. 3482 English

Contents

Majority

p. 161
[S. F. No. 3482.
Department Two.
October 23, 1905.]
EDMUND MARKS, Appellant, v. HUGH KEENAN, Respondent.

Headnote

Action—Negligence in Service of Summons—Dismissal for Want of Prosecution—Discretion.—Where it appeared that after filing the complaint and issuing the summons in an action no attempt was made to serve it for more than a year, though defendant was a resident of the city where suit was brought, and Ms place of residence was in the city directory, and the summons was not served until a year and four months after commencement of the action, there was no abuse of discretion in dismissing the action for want of prosecution.
APPEAL from an order of the Superior Court of the City and County of San Francisco dismissing an action for want of prosecution. J. M. Seawell, Judge.
The facts are stated in the opinion of the court.
William J. Herrin, for Appellant.
J. B. Reinstein, for Respondent.

This is an appeal by plaintiff from an order dismissing the action for want of prosecution. The general rule is that the disposition of a motion to dismiss an action for want of prosecution rests in the discretion of the trial court, and that its action on such motion will not be disturbed here unless such discretion has been grossly abnsed. We see no such abuse of discretion in this case. After the filing of the complaint and the issuing of the summons nothing was done towards serving the summons until more than a year had elapsed. During that time the summons was not given to the sheriff, nor was any other person employed to serve it. The defendant during this time was a resident of San Francisco, where the action was commenced, the place of his residence being in the city directory; and there seems to have been no good reason why he was not served. The service was not made on him until a year and four months after the commencement of the action and the issuance of the summons. Under these circumstances we do not feel called

p. 162
upon to disturb the order appealed from. In Ferris v. Wood, 144 Cal. 426 , [ 77 Pac. 1037 ], cited by appellant, there were special circumstances which were very different from those appearing in the case at bar.

The order appealed from is affirmed.

Cases cited