Chilcote v. Pacific Air Transport

From an order made dismissing the above-entitled action the plaintiff has appealed. The ’transcript discloses the defendant corporations are foreign eau-porations; that C. E. Johnson is their resident agent designated by them as the person on whom process may be served; that the said action was commenced July 11, 1933; that itwas brought to recover damages for injuries sustained by the plaintiff in an aircraft accident which happened on July 11, 1932; that an amended complaint was filed July 8, 11939; that the summons was issued on July 11, 1933; t.Mit the. complaint and the summons were delivered to the/sherifí: of Alameda County on July 3, 1936, and were servad on July 7, 1936; that on August 15, 1936, the summon/had not been returned: that on August 18, 1936, the defendants served

We will first discuss the first ground of the defendants’ motion. Section 581a of the Code of Civil Procedure contains the following provisions: “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 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 mann'ier as if summons had been issued and served; . . . ” It is;’ not claimed the summons was returned within three yearns after the date of the commencement of the action. Unless the defendant appeared before the motion was made the trial court had no jurisdiction to proceed. (Pearson v. Superior Court, 122 Cal. App. 571 , 574 [ 10 Pac. (2d) 489 ].) The question then arises, did the defendant appear f Section 1014 oi the Code of Civil Procedure provides: “A defendant ''appearsá an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice olXappearance for him.” The record before us does not show tiSEit the defendants answered, demurred, or

The plaintiff claims her affidavit contained averments which entitled her to relief under the provisions of section 473 of the Code of Civil Procedure. We think .the averments did not do so. It has been so held on a set of facts as strong or stronger than in the instant case. (Cruse v. Superior Court, 102 Cal. App. 290 , 297 [ 283 Pac. 73 ].)

In defense of the second ground stated in the «Motion, made by the defendants, the plaintiff’s attorney set forth in his affidavit that for the purpose of serving process on the defendants “once in the fall of 1933 and once about Thanksgiving in 1933” (twice on the same dlyf) he balled at the office of, but failed to see, the agent of the defendants. He further stated: “Affiant on numerous occasions at-least a dozen times, since then has called, by telephone, the office of defendants and asked for Mr. Johnson, and on each -occasion was told that Mr. Johnson was out of town.” Iri her brief the plaintiff states she wanted to avoid litigation) and desired to arrange a settlement of her claim without litigation. In support of the order made on the second ground iitated in their motion, the defendants call attention to thC fact that since the date of the accident their agent has been in his office twenty-five days in each month; that/Jie plaintiff, her attorney, and Mr. Johnson all reside in Oakland and that

The order appealed from is affirmed.

Nourse, P. J., and Spence, J., concurred.