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148 Cal. 161

82 P 772

Marks v. Keenan

California Supreme Court

Decided October 23, 1905

California Supreme Court · decided 1905-10-23

<p>Action—Negligence in Service of Summons—Dismissal for Want of Prosecution—Discretion.—Where it appeared that after filing the complaint and issuing the summons in an action no attempt was made to serve it for more than a year, though defendant was a resident of the city where suit was brought, and Ms place of residence was in the city directory, and the summons was not served until a year and four months after commencement of the action, there was no abuse of discretion in dismissing the action for want of prosecution.</p>

Key passage — most relied on by later courts

““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.””

quoted by 1 later decision, including 118 Cal. App. 588 - Bryson v. Harryman

Relies on Ferris v. Wood

Good law ✅— No negative treatment on recordhow we know

Decided 1905-10-23

How this case has been cited

Cited by 9 later decisions — most recently February 1959

9 state decisions

30190519101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

THE COURT.

¶1 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 *162 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.

¶2 The order appealed from is affirmed.

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