Dupuy v. Shear

Citations

• 29 Cal. 238

Syllabus

<p>Mode of commencing Suits. — The mode of commencing suits and acquiring . jurisdiction of the parties is controlled by the practice Act, and not by the practice which prevailed at common law.</p> <p>Time within which Summons must be Issued.—Since the amendment of 1860 to the one hundred and twenty-third section of the Practice Act, the Clerk is not authorized to issue a summons in an action, without an order from the Court, after the expiration of, one year from the filing of the complaint. This principle applies as well to causes in which the complaint was filed before, as to those in which the complaint was filed after the amendment took effect.</p> <p>Summons ordered to be Issued by the Court.—If the Court is authorized to direct a summons to issue after the expiration of the year, the exercise of the power rests in the legal discretion of the Court, and its action will not be set aside on appeal unless it clearly appears that the discretion was not soundly exercised.</p> <p>Order of Court striking out Complaint.—Where a plaintiff commences an action by filing a complaint and issuing summons, but makes no service on the defendant until nine years have elapsed, an order of the Court,. made on defendant’s motion, striking out the complaint for want of prosecution, is not such an abuse of discretion as to justify the appellate Court in reversing the order.</p>