Vrooman v. Li Po Tai

Citations

• 113 Cal. 302
• 45 P. 470
• 1896 Cal. LEXIS 781

Syllabus

<p>Practice — Failure to Serve or Return Summons — Dismissal op Action.— Subdivision 7 of section 581 of the Code of Civil Procedure, providing for the discontinuance and dismissal of actions unless the summons has been issued within one year, and served, and return thereon made within three years after the commencement of the action, or unless appearance has been made by the defendant within said three years, is prohibitory and mandatory, and is not unconstitutional so far as it is made applicable to pending suits.</p> <p>Id.—Appearance op Dependant.—A defendant, by taking from the plaintiff and filing a stipulation extending his time to answer, and by accepting and acting upon an agreement contained therein to grant successive extensions in consideration of certain payments made, does not appear in the action, within the meaning of said section 581; and such facts will not operate to prevent a dismissal of the action for a failure to return the summons within the time limited by the section.</p> <p>Id.—Administrator cannot Waive Statute.—The administrator of the estate of a deceased person being prohibited from allowing or paying any claim against the deceased which is barred by the statute of limitations, cannot, by appearing and answering a supplementary complaint in an action originally brought against the deceased, in .which the summons was not returned within the time limited by the statute, waive the objection.</p>