Marks v. Keenan

82 P. 772, 148 Cal. 161, 1905 Cal. LEXIS 652

Opinion

THE COURT.

This is an appeal by plaintiff from an order dismissing the action for want of prosecution. The general rule is that the disposition of a motion to dismiss an action for want of prosecution rests in the discretion of the trial court, and that its action on such motion will not be disturbed here unless such discretion has been grossly abnsed. We see no such abuse of discretion in this case. After the filing of the complaint and the issuing of the summons nothing was done towards serving the summons until more than a year had elapsed. During that time the summons was not given to the sheriff, nor was any other person employed to serve it. The defendant during this time was a resident of San Francisco, where the action was commenced, the place of his residence being in the city directory; and there seems to have been no good reason why he was not served. The service was not made on him until a year and four months after the commencement of the action and the issuance of the summons. Under these circumstances we do not feel called upon to disturb the order appealed from. In Ferris v. Wood, 144 Cal. 426, [77 Pac. 1037], cited by appellant, there were special circumstances which were very different from those appearing in the case at bar.

The order appealed from is affirmed.