Kelly v. Ferbrache

This action was instituted by appellant as plaintiff in the court below to recover a deficit resultant after a sale had been made under the provisions of a deed of trust securing a promissory note. The defendants named in the complaint were J. Albert Ferbrache and the respondent Mary J. Ferbrache, joint makers of said promissory note.

The complaint was filed February 8, 1926, and summons issued the same day. Defendant Albert Ferbrache was duly served with complaint and summons within two months thereafter, and judgment was subsequently rendered against him. Respondent Mary Ferbrache, however, was not served with either summons or complaint until August 6, 1929, a period approximately three years and six months after the

It is apparent from the facts stated that the failure of appellant to serve respondent with summons within three years after the commencement of the action immediately called into operation the provisions of section 581a of the Code of Civil Procedure, which have been repeatedly held in a long line of cases to impose a mandatory as well as statutory prohibition upon the superior court from taking any further proceedings against a defendant who has not been served with summons within the prescribed period of limitation, other than to order a dismissal of the action against such defendant. (Vide, Bellingham, Bay Lumber Co. v. Western Amusement Co., 35 Cal. App. 515 , 518 [ 170 Pac. 632 ], and cases therein cited; Sauer v. Superior Court, 74 Cal. App. 580 [ 241 Pac. 570 ].)

It, however, further appears from the record that upon the failure of respondent to appear in response to the alias summons served upon her on August 6, 1929, appellant caused the former’s default to be entered, and subsequently on September 13, 1929, with such default as its underlying basis, obtained from the trial court a judgment for the relief prayed for in her complaint.

Respondent appeared in the action for the first time on September 14, 1929, by filing a motion to dismiss the action because of delay in service and return of summons, and upon then ascertaining that a judgment had already been entered against her, promptly moved, upon September 17, 1929, to vacate and set the judgment aside upon the grounds that the same was void and beyond the jurisdiction of the court to make or render. The trial court, convinced of the improvident nature of the default judgment and its own want of jurisdiction in rendering the same, granted the latter motion to vacate and ordered a dismissal of the action. It is from this order and judgment, based upon section 581a of the Code of Civil Procedure, that appellant appeals.

The principal contention urged by appellant on the appeal is that section 581a of the Code of Civil Procedure does not apply to actions such as hers, “which have gone to judgment”. In support of this claim she relies upon certain excerpts from the case of Jones v. Gunn, 149 Cal. 687 , particularly the sentence appearing on page 694 of that

Upon so considering the sentence quoted from Jones v. Gunn, supra, it will be observed that the same immediately follows a sentence in which the Supreme Court had carefully pointed out concerning the case then under adjudication that “ . . . after commencement of the action, service of summons was made, the trial had, and a judgment, which has long since become final, was rendered within a year after the commencement of the action.” (Italics ours.) As we construe the decision, it was only because these acts requisite to jurisdiction had severally occurred prior to the expiration of the three-year period upon which, had they not so occurred, the trial court, under section 581a, would have ex necessitate legis been without jurisdiction, that the court held the then existing similar subdivision 7 of section 581 of the Code of Civil Procedure is inapplicable “to actions which have gone to judgment”. By reason of the fact that all the acts relied upon to confer jurisdiction in Jones v. Gunn, supra, were taken within the three-year period of final limitation, whilst in the instant case the jurisdictional requisites of service of summons and return thereon are definitely shown to have been made after the expiration of such period, we hold that the case cited is not in point.

Appellant makes the further point that the provisions of section 581a of the Code of Civil Procedure relate and apply only to the service of original summons and not to an alias summons. Her claim in this respect is that the issuance of an alias summons at a date some seven months later in point of time than the issuance of original summons had the effect of extending the three-year period prescribed

“A technical alias summons is not known to our law, and in fact, under our system of practice, there is no necessity for one. The summons specifies no return day, and when it has once been issued it may be served and returned at any time without reference to the time of the commencement of the next term of Court. ... If more than one summons is authorized by the Practice Act, the second has no necessary connection with, or dependence upon, the first. It is based upon the complaint alone. The capias ad respondendum under the common law system was returnable at the next succeeding term of the Court, and a return of the writ was a necessary prerequisite to the issuing of an alias.”

Section 408 of the Code of Civil Procedure merely provides that an alias summons may, in either of the two events therein specified, issue “within such time as the original might have been served”, and that period of time by the express limitations of section 581a of the Code of Civil Procedure is fixed as three years. But this does not mean, as appellant contends, that a plaintiff will still have three

Aside from this plain mandate of the statute (sec. 581a, Code Civ. Proc.) to the contrary, the recognized mischievous results that would follow by permitting the successive issuance of a series of alias and pluries summons to indefinitely toll its prescribed three-year period of limitation, are most persuasive reasons for withholding our approval of appellant’s contention. Some of these are pointed out in Weaver v. Woodling, 220 Mo. App. 970 [ 272 S. W. 373 , 374], where it is said:

“A plaintiff, after filing his petition, might wait indefinitely and then bring the defendant into court pursuant to an alias summons, after his witnesses were dead or his proofs lost or destroyed, and obtain judgment upon claims not founded in justice, and the practice thereby becomes a means of injustice and oppression. Courts could not sanction a practice so fraught with mischief, unless it were so long and clearly established as to have the force of positive law.”

Appellant makes the further claim that respondent absented herself from the state and likewise secreted herself within the state for the purpose of avoiding service of summons, and invokes those provisions of said section 581a of the Code of Civil Procedure which prescribe that no dismissal shall be had where actions or conduct of the character specified prevented service of summons; but inasmuch as this question of fact was fully presented to the trial court upon a series of substantially conflicting affidavits and counter-affidavits, and by it determined adversely to appellant’s claim, it follows that such determination is necessarily conclusive. (Wilson v. Leo, 19 Cal. App. 793 , 797 [ 127 Pac. 1043 ].)

For the reasons given the judgment and order appealed from are affirmed.

Tyler, P. J., and Knight, 31, concurred.