Lambert v. Conrad

• Decision Date: 03 October 1960
• Citation: 8 Cal.Rptr. 56,185 Cal.App.2d 85
• Court: California Court of Appeals Court of Appeals
• Parties: Virginia Ann LAMBERT, Plaintiff and Appellant, v. R. B. CONRAD et al., Defendants, R. B. Conrad and R. P. Gibson, Respondents. Civ. 24554.

Page 56

8 Cal.Rptr. 56

185 Cal.App.2d 85

Virginia Ann LAMBERT, Plaintiff and Appellant, v. R. B. CONRAD et al., Defendants R. B. Conrad and R. P. Gibson, Respondents.

Civ. 24554.

District Court of Appeal, Second District, Division 2, California.

Oct. 3, 1960.

Hearing Denied Nov. 30, 1960.

Samuel C. McMorris, Los Angeles, for appellant.

Roger Arnebergh, City Atty., William B. Burge, Deputy City Atty., Los Angeles, for respondents.

RICHARDS, Justice pro tem.

Plaintiff appeals from an order and judgment made pursuant to section 581a of the Code of Civil Procedure dismissing her action as to certain defendants based upon a failure to return the summons to the clerk within three years after commencement of the action.

Plaintiff also attempts to appeal from an order danying her motion to vacate and set aside the judgment of dismissal, but this attempted appeal must be dismissed because 'the attempt to appeal from the order refusing vacation of the order of dismissal is but a repetition of plaintiff's appeal from such last-mentioned order'. Schultz v. Schultz, 70 Cal.App.2d 293, 295, 161 P.2d 36, 37.

The action is one for false imprisonment, slander, libel and assault and battery. The facts are undisputed. The record before us discloses, in chronological order, the following proceedings taken in the litigation from its inception up to the order and judgment of dismissal and subsequent filing of summons:

February 1, 1956--Complaint filed.

January 30, 1957--Summons issued.

January 30, 1959--Service of summons and complaint on defendant R. P. Gibson.

February 2, 1959--Service of summons and complaint on defendant R. B. Conrad.

February 2, 1959--Affidavit of service of summons and complaint on said defendants, subscribed and sworn to before attorney for plaintiff acting as a notary public.

March 24, 1959--Motion of said defendants to dismiss pursuant to Code of Civ.Proc., sec. 581a, granted and minute order of dismissal as to said defendants.

April 2, 1959--Summons with affidavit of service filed in the office of the county clerk.

The sole question presented is whether the summons was 'served and returned thereon made' within three years after the commencement of the action as required by section 581a of the Code of Civil Procedure which, as apt, reads: '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 the motion of any party interested therein, * * * and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action * * *'.

The plaintiff urges that 'return thereon made' as used in the statute means by definition merely the endorsement of service on the summons. In Atchison T. & S. F. Ry. Co. v. Rollaway W. S. Co., 101 Cal.App.2d 763, 226 P.2d 763, an action was commenced July 17, 1946, summons and complaint were served June 20, 1949, and the affidavit of service made thereon June 20, 1949, less than three years from the commencement of the action. However, the summons was filed September 21, 1949, more than three years from the commencement of the action. In sustaining a judgment of dismissal under said section 581a the court said at pages 767-768, of 101 Cal.App.2d, at page 766 of 226 P.2d: 'Plaintiff contends that this ['return thereon'] does not require filing the returned summons but merely the endorsement of service thereon. This question is no longer an open one.' (Emphasis added.)

Code of Civil Procedure, section 581a, enacted in 1907, is based upon subdivision 7 of section 581 as added in 1889, which provided that an action shall be dismissed 'unless summons shall have been issued within one year, and served, and return thereon made within three years after the commencement of said action'. The earliest case on the subject is Vrooman v. Li Po Tai, 1896, 113 Cal. 302, 45 P. 470, 471, in which the summons was issued and served the day the action was commenced but not filed with the clerk within three years after the commencement of the action, and the Supreme Court held that the statute was mandatory and reversed a judgment for the reason that the summons had not been filed within said three-year period. Thereafter, there follow a line of cases which were decided on the premise that not only must the service be made within the requisite period, but also that the summons with proof of service must be filed with the office of the county clerk within the statutory period. Such cases are Modoc Land & Live-Stock Co. v. Superior Court 128 Cal. 255, 60 P. 848; Grant v. McArthur, 137 Cal. 270, 70 P. 88; Bellingham Bay Lumber Co. v. Western A. Co., 35 Cal.App. 515, 170 P. 632; Pearson v. Superior Court, 122 Cal.App. 571, 10 P.2d 489; Chilcote v. Pacific Air Transport, 24 Cal.App.2d 32, 74 P.2d 300; Pease v. City of San Diego, 93 Cal.App.2d 706, 209 P.2d 843. In Frohman v. Bonelli, 91 Cal.App.2d 285, 204 P.2d 890, the precise point which appellant here urges was raised and after reviewing the previous authorities the court held (91 Cal.App.2d at page 291, 204 P.2d at page 891) that 'return thereon made' means the filing of the summons 'with the clerk of the court together with the officer's certificate of service, if it was served by an officer, or the affidavit of service of the person who served it, if it was served by any other person, within the three year period'. Atchison T. & S. F. Ry. Co. v. Rollaway W. S. Co., supra, 101 Cal.App.2d 763, 226 P.2d 763, 767, cites and follows Frohman as to the meaning of 'return thereon made'. The latest case following the previous rulings is Beckwith v. County of Los Angeles, 132 Cal.App.2d 377, 282 P.2d 87. Thus, for nearly sixty years it has been uniformly and repeatedly decided that not only must there be service and proof of service within the statutory period, but also the summons together with such proof of service must be filed in the office of the county clerk within such period to avoid the consequences of said action.

Appellant urges that we re-examine the foregoing rule in the light of decisions from other jurisdictions, particularly the State of Montana. Such an examination was made in Atchison T. & S. F. Ry. Co. v. Rollaway W. S. Co., supra, 101 Cal.App.2d 763, at page 769, 226 P.2d 763, at page 767, wherein the court said: 'Haggerty v. Sherburne Mercantile Co., 1947, 120 Mont. 386, 186 P.2d 884, and State ex rel. Montgomery Ward & Co. v. District Court, 115 Mont. 521, 146 P.2d 1012, in construing a Montana Statute similar to section 581a, hold that the words 'return made' do not include the filing of the summons. This appears to be contrary to the weight of authority in other jurisdictions, and is directly contrary to the rule in California as set forth in the Frohman case, supra, 91 Cal.App.2d 285, 204 P.2d 890.'

In view of the long and uniform acceptance of the rule by the reviewing courts of this state and by the legal profession generally in governing their conduct thereby, we are not disposed to strike down the settled rule because other states have decided differently, for the reason the 'an excess of virtue in the decision of an outside jurisdiction does not cause it to prevail over the settled judicial policy of this state'. Estate of Fritz, 102 Cal.App.2d 385, 394-395, 227 P.2d 539, 545.

Appellant further contends that the 1957 amendment of Code of Civil Procedure, section 410, requires that the phrase 'return thereon made' as used in said section 581a be now held to mean only 'the attachment of the certificate or affidavit, and its delivery to counsel'. Prior to 1957, section 410 provided, in part, 'When the summons is served by the sheriff * * * it must be returned, with his certificate of service * * * to the office of the clerk or judge from which it issued. When it is served by any other person, it must be returned to the same place * * *' The italicized portion was amended in 1957 to read: '* * * to plaintiff if he is acting as his own attorney, otherwise to plaintiff's attorney'. Stats.1957, ch. 497, p. 1531, § 1.

Although the plaintiff's brief asserts that the summons was in fact 'served and returned to plaintiff's attorney on or before the deadline date', the record before us does not affirmatively substantiate that assertion. There is nothing on the summons or affidavit of service disclosing any date of the delivery thereof to the plaintiff's attorney, although the affidavit of service discloses that it was subscribed and sworn to before him on February 2, 1959, ¹ the action having been commenced February 1, 1956. The record does not disclose any affidavit on behalf of plaintiff in opposition to the motion to dismiss. It does, however, contain the affidavit of plaintiff's counsel in support of a motion to vacate the judgment of dismissal to the effect that 'counsel did cause to be served and return made to counsel, the summons hereinbefore issued' but said affidavit does not aver the date of said 'return made to counsel'. However, appellant's brief states that 'by affidavit herein filed, in our instant case, the summonses [sic] were in fact served and returned to plaintiff's attorney on or before the deadline date'. This statement is unchallenged by respondents and whereas we do not accept the statement in the brief as evidence of the fact, yet inasmuch as respondents have replied to appellant's argument as to the effect of the 1957 amendment of section 410 upon section 581a, we have decided to pass upon the contention so raised by appellant.

The essence of plaintiff's brief argument on this contention, without citation of authority, is that 'the courts had to rely upon Sec. 410 in developing the 'California Rule' interpreting the dismissal statute. It thus must follow that the substantial a...