Carpentier v. Minturn — 39 Cal. 450

Majority

p. 450

No. 1,909.

H. W. CARPENTIER, Appellant, v. CHARLES MINTURN et als., Respondents.

Headnote

Pbachce.—-Dismissal pop. Want op Pbosecution.— Where a complaint was filed and summons issued more than eight years before service, a motion by defendant to set aside the summons and strike the complaint from the files was properly granted.

Appeal from the District Court of the Twelfth District, City and County of San Francisco.

The facts are stated in the opinion.

H. W. Carpentier, in pro. per., for Appellant.

E. R. Carpentier, of counsel, claimed that Sections 148 and 149 of the Practice Act apply to this case and entitled plaintiff to “judgment on the merits.”

Williams & Thornton, for Respondent, cited Dupuy v. Shear ( 29 Cal. 241 ) and Grigsby v. Napa County ( 36 Cal. 585 .)

delivered the opinion of the Court:

The plaintiff having filed his complaint, procured a summons and a certified copy of the complaint, but mislaid them, and did not discover them until after the expiration

p. 451

of more than, eight years. Soon after finding them, he caused them to be served on .the defendants. The excuse for the delay in serving the papers is, that he mislaid and forgot them. The Court, on the defendant’s motion, ordered the summons to be set aside and the complaint to be stricken from the files. There was no abuse of discretion in granting the motion, and, in our opinion, the order was fully justified by the facts presented in the affidavits. (See Dupuy v. Shear, 29 Cal. 241 ; Reynolds v. Page, 35 Cal. 296 ; Grigsby v. Napa County, 36 Cal. 585 .)

Judgment affirmed.

Wallace, J., being disqualified, did not participate in the decision.

Cases cited

Grigsby v. Napa County 36 Cal. 585 Cal. p. 450, p. 451
Reynolds v. Page 35 Cal. 296 Cal. p. 451