Smith v. Herzer

The plaintiff appeals from a judgment of dismissal entered by the trial judge on motion pursuant to section 581a of the Code of Civil Procedure; that section, on its face, requires the dismissal of an action in which the defendant is not served and the return of summons filed within three years from the commencement of an action unless plaintiff shows (1) that there was an agreement between the parties extending the said period, or (2) that the defendant was absent from the state during part of the time, with the total period of such absences added to the three-year period, or (3) that the defendant secreted himself within the state to avoid the service of summons, in which event such period is also added to the three-year time.

Appellant urges that the requirements of section 581a of the Code of Civil Procedure are not mandatory, and that the judge abused his discretion in the instant ease by granting the motion to dismiss, contending that there are “numerous implied exceptions to this statutory requirement,” one of which he urges as being “impracticability” or “futility,” and claims that such “impracticability” or “futility” was present in this litigation.

The defendant was a doctor who formerly practiced in Modesto, and who was alleged to have infected the plaintiff with osteomyelitis. The difficulty in serving the doctor was noted initially when the original law firm representing the plaintiff sent its file to the substituted firm of Elledge and Dunford in

In February 1964, plaintiff learned that the defendant was in the Stockton State Hospital and would remain there indefinitely; this information came from defense counsel, James Barnum. In the middle period of 1964, plaintiff learned at the Tuolumne County courthouse that defendant had been released from the state hospital. Summons and complaint were delivered to the offices of a process server, J. E. Furneaux, for service, but he reported that he could not find the doctor. Then, defense counsel, Barnum, informed plaintiff’s attorney that the defendant was a psychiatric patient in the Langley-Porter Clinic in San Francisco and that plaintiff’s attorney would be notified when he was released. Hearing nothing further, counsel attempted service at the clinic, but learned that the defendant had not been there for several months; appellant’s attorney then wrote to Mr. Barnum for information; Mr. Barnum answered on December 31, 1964, that defendant was an outpatient of the University of California Medical Center but was capable of giving a deposition and participating in his defense in another pending case (Kaufman v. Herzer) and he would produce the doctor for a deposition. In February 1965, the defendant doctor was present in Modesto for the deposition in the case of Kaufman v. Herzer; he was examined by counsel for the plaintiff. This was unquestionably a perfect time in which to serve the defendant in the ease of Smith v. Herzer; no adequate excuse is made for the failure to serve him at that time or, in fact, at any time during the three years while defendant was in an ascertainable institution at a known address. Counsel for plaintiff acknowledges that service could have been made in February 1965, but says that defendant’s mental and emotional status appeared to

As late as 1967, plaintiff’s counsel made a showing that he was still trying to serve defendant; in May of 1967, he attempted to obtain his address from defendant’s attorneys; then, Mr. Barnum said he wished to think about the request; by letter of May 12, 1967, Mr. Barnum gave a residence address in Glendale, but when service was attempted there, a woman at that address refused to identify herself or to give any information about defendant.

Was the “impracticability” claimed by appellant’s counsel such a circumstance as to excuse the failure to serve summons under section 581a of the Code of Civil Procedure? On its face, that section appears to be ironclad, except for the specific exceptions contained in the section. The adjudicated cases in the early days bear out this rigid interpretation, and it has been said, not only in decided cases but in apposite texts, that there is a mandatory duty to dismiss if service is not made and the return not filed, and that the requirement, except for the specific exceptions, is jurisdictional. In 2 Wit-kin, California Procedure (1954) Proceedings Without Trial, section 29, page 1667, it is noted: “The statute is mandatory and jurisdictional. In a case coming within its terms the court has no authority except to dismiss, and prohibition will lie to prevent it from trying the case.” It is also said in the same portion of Mr. Witkin’s work: “No exceptions have been recognized other than those specified in the statute.” (See also Cook v. Justice’s Court, 16 Cal.App.2d 745 , 748 [ 61 P.2d 357 ]; Davis v. Hart, 123 Cal. 384 [ 55 P. 1060 ]; Modoc Land etc. Co. v. Superior Court, 128 Cal. 255 [ 60 P. 848 ]; Ransome-Crummey Co. v. Wood, 40 Cal.App. 355 , 357 [ 180 P. 951 ]; Sauer v. Superior Court, 74 Cal.App. 580 , 583 [ 241 P. 570 ]; Kelly v. Ferbrache, 119 Cal.App. 529 [ 6 P.2d 987 ]; City of San Jose v. Wilcox, 62 Cal.App.2d 224 [ 144 P.2d 636 ]; Cahn v. Jones, 101 Cal.App.2d 345 [ 225 P.2d 570 ]; Palmer v. Superior Court, 192 Cal.App.2d 302 [ 13 Cal.Rptr. 301 ]; Lambert v. Raney, 239 Cal.App.2d 659 [ 49 Cal.Rptr. 126 ].)

However, our Supreme Court considered the question whether there could be decisional exceptions to the enforcement of the section in addition to the express exceptions contained in it, in the ease of Wyoming Pacific Oil Co. v. Pres

These statements of principle constitute dictum in that they are not decisive of the case as the court’s action there turns on one of the express exceptions contained in the code section, rather than on a decisional exception; however, these announcements are explicit and we note the viewpoint of the Second Appellate District, Division 3, in an opinion written by Mr. Justice Moss (Flamer v. Superior Court, 266 Cal.App.2d 907 , 913 [ 72 Cal.Rptr. 561 ]), where it is said; “It has been suggested that the language in Wyoming Pacific equating sections 581a and 583 is dictum because the ease actually fell within this express exception and, therefore, that it was not necessary to bring the case within an implied exception in order to reverse the order of dismissal. [ Citations.] Even if we were to regard the language of the Supreme Court as dictum, we would still regard it as compelling here because the basis for the distinction theretofore drawn between sections 581a and 583 was apparently only a slight difference in the wording of the two sections, whereas the reasons advanced by the Supreme Court for construing the two sections in the same way are persuasive. ’ ’

Furthermore, Witkin, in the 1967 Supplement to his California Procedure, Proceedings Without Trial, section 29, page 597, states with respect to the effect of the Wyoming Pacific case: “Implied exceptions, comparable to those developed in the construction of [Code of Civil Procedure] 583 . . . may now be recognized (Wyoming Pac. Oil Co. v. Preston (1958) 50 Cal.2d 736 [ 329 P.2d 489 ]).” We accordingly affirm that in a proper case the courts of this state have discretion to recognize decisional or implied exceptions to the apparently stringent rule as provided in the Wyoming Pacific Oil Co. case, supra.

The judgment is affirmed.

Stone, J., and Gargano, J., concurred.