Pacific Bridge Co. v. Jacobus

Headnote

Action—Dismissal for Want of Prosecution—Service—Discretion.-—Where the summons was not issued till nearly a year after the action was begun, and had not been served at the time of a motion to dismiss three years and eight months after its issuance, plaintiff explaining that he forebore to serve the summons for the reason that certain persons represented that defendant would abide the event of a test case, but not showing their authorit)'. to make the representations, and defendant denying it, held, that there was no abuse of discretion in granting the motion to dismiss.

APPEAL from Superior Court, Alameda County.

The record shows that this was an action to recover a street assessment; that it accrued November 6, 1877; that the action was commenced October 25, 1879; that the summons was issued October 6, 1880; that the summons has not been served; and that the plaintiff did nothing between the date of issu-

anee of the summons till the motion to" dismiss was made. The motion to dismiss the action for want of prosecution was made May 29, 1884, based upon an affidavit of defendant that he had been at all times within reach of process; that the plaintiff had been wanting in due diligence, and did not begin the action in good faith. The plaintiff in his affidavits showed that certain persons, representing themselves to be. an executive committee of certain property holders, who intended to resist the assessments, represented that it was the desire of all that an action of plaintiff against Kirkham, one of said committee, should be a test case, by the result of which they would all abide, and that, by reason of such representations, plaintiff forbore to serve the summons and prosecute said actions. Defendant, by his counter-affidavits, showed that the agreement among the property holders was simply to combine together to resist the collection of the tax, and pay the expenses of the litigation, both in the Kirkham case, and in any other cases that might arise, pro rata. The action was dismissed.