Kreiss v. Hotaling

Citations

• 99 Cal. 383
• 33 P. 1125
• 1893 Cal. LEXIS 674

Syllabus

<p>Dismissal—Delay in Service of Summons—Discretion__The court below has discretion to dismiss a cause for delay of nearly two years in the service of the summons upon the defendant.</p> <p>Id.—Limitation of Discretion__The only limitation upon the exercise of the discretionary power of the court to dismiss a cause for delay iu the service of summons is that it must not be abused; and it is for the court, in the exercise of its discretion, after hearing the statement of the parties, to determine whether the plaintiff was or was not acting in good faith and in the exercise of reasonable diligence.</p> <p>Id.—Insufficient Excuse for Delay—Appeal from Order Staying Judgment upon Award.—It is not a sufficient excuse for long delay in the service of summons in an action, where it appears that it can be served promptly without difficulty, that the complaint in the action was filed to prevent the running of the statute of limitations upon the cause of action, and that an appeal was pending from an order of the court, upon motion of the plaintiff, granting a perpetual stay of execution on a judgment upon an award in favor of the defendant, under an arbitration of the subject-matter of the action.</p> <p>Id.—Delay of Less than Three Years—Construction of Code. —Section 581 of the Code of Civil Procedure, as amended in 1889, is not prohibitory, and was not intended to limit the power of the court to determine whether there has been an inexcusable delay to serve the summons within the term of three years fixed by that section, but rather to confer power upon the court of its own motion to dismiss an action which has been pending for that period without service of summons. The discretion of the court remains as before, and each case must be determined upon its own peculiar circumstances.</p>