Sacramento daily record-union., 1890-03-15
WAITED TOO LONG.
THE SUMMONS WAS NOT SERVED IN
THE STATUTORY TIME.
Another Decision for Defendants in the
Case of Pinkham VS. The South
ern Pacific Company.

Judge Armstrong. in Department One oi
the Superior Court, yesterday made an or
der granting the motion Of the defendants
in the case of Pinkham vs.. The Southern
Pacific Company-to quash the summons
served therein. In deciding the point al
issue the Court reviews the history of the
case, and explains at length the legal COM
plications that have arisen and been dis.
posed of from the commencement of the
suit. The opinion is as follows;
In the case Of Charles e Pinkham against the
Southern Pacific Company there is motion 10
ouash the summons. The history of that case Is
this: On the 3lst day of Mag, 1857, the plaintiff
filed a complaint in this Court against the
Southern Pacific Railroad Company. On the
25d day Of August, 1857 summons was issued,
and on the 18th was served on the Secretary OF
the Southern Pacific Railroad Company. The
defendant interpOsed a demurrer to the com
plant, which, after examination was over
ruled. Then an answer was fled raising certain
issues. After the answer was filed counsel for
plaintiff discovered that a mistake had been
made in the name of the defendant ne intended
TO sue, and that instead of being the southern
Pacific Railroad Company, a corporation oper-
ating its railroad in this state. il was the South
ern Pacific Company that operated the railroad
described in the complaint.
Ihele lpCn motion was made for leave to file
an anne aded complaint, and leave was granted.
The amended eomplsint described the defend
ant as the Southern Pacific Company, and was
fled OF the 22d day of October lSsS. No sum
mons was issued upon that amended complaint,
but motion was made for leave to amend the
summons which had been issued on the original
c0mpl amt and TO withdraw II for service. AT
that time 1 fled an opinion denying the mo-
tiOn, on the ground that the original comp aint
had been superseded by the amended com
plant and that the summons bore date August
., 1887, instead of a date subsequent 70 the
filing of the amended complaint; and the
amended complaint was the only one to which
the present defendant was party.
Nothing further was done in the action until
the first day of october, 1889. when there was
served upon the COunsel-WhO had been counsel
in the original action for the defendant and
statement was made in an affidavit that he was
also the attorney Tor the Southern Pacific Com
pany-a notice of motion for the Court to or
der the issuance of an alias summons. That
matter was continued from time 10 time, and
finally came on tor hearing. The Court ordered
that an alias summons issue or a summons
with leave to the defendant to move to quash
it, if it was so advised. A motion was atterward
made to qussh the summons. The summons
referred to was served on the 4th OF November
1889, having been issued on the 29th of October
1859. 1t was served on the officers of the South
ern Pacific Company. When the motion was
made to quash that summons, the plaintiff came
in with a counter motion for leave TO amend
the summons. That motion was heard and de-
temined on November 10th last. The summons
was amended The amendment was allowed,
without prejudice to the defendant, to move to
quash, and Immediately afterward defendant
moved TO quash that summons. That is the
motion now to be disposed Of
have read the briefs of counsel with a great
deal of care, and have specially considered the
case in III. C. S. and the case in rs Cal. but il
does not seem to nae that those cases control
this question; the question is controlled by the
statute itself The summons upon the new
complaint was not ISSUED for a year and five
days after the filing of the amended complaint.
The Supreme Court has decided that the Court
cannot order q summons to be issued. There is
no provision in the Code to authorize such an
order, and take that to be the law. l come 10
that conclusion from the provisions of the Code,
and that a summons cannot be issued after the
expiration OF one year from the fling Of the
complaint
The Clerk must indorse on the complaint
the day month and year that it is filed; and at
any time within one year thereafter, the plain
tiff may have summons issued; and If the ac-
tion be brought against two or more defendants
VINO RESIDE ID dlnerent counties, may nave
summons issued for each of such counties at
the same time. But at any time within the
year alter the complaint is filed, the defendant
may, IN writing, or by appearing ana answering
OF demurrng, waive the issuing OF summons
lSeetion 406 of the Code of Civil Procedure
It would seem to follow that waiver OF The
issuance Of the summons is limited TO within
the year after the filing of the complaint, and
the complaint itself becomes void for any pur-
pose in the action after that time. That would
seem TO be the meaning OF it. II does not, how
ever, become necessary TO place this decision
upon that ground Section 40S of the Code Of
Civil Procedure reads
= If the summons is returned without being
served on any or all of the defendants, or ii it
has been lost, the Clerk, upon the demand of
the plaintiff may issue an aliss sum mons in the
same form rs the original, provided that no
such alias summons shall be issued after the
expiration of one year from the date of the
fling of the complaint
Now, that seems TO confirm the position taken
by the Supreme Court in the case of the People
against Huber, in both Cal, that the Court can
not order the issuance of a summons, for il is
the duty of the Clerk to issue it, but it cannot
be done after the expiration of one year. Now,
assuming as do for the purpose of this deci-
sion, that the amendment 70 the complaint was
sufficient to have continued the original action,
and that a summons might have been taken on
that complsint at any time within year, ana
continued the action, yet after the year expired
no summons could be taken. In deciding the
first motion gave my reasons in writing, which
are on file one of them was that the original
complaint was superseded, because the Su.
preme Court had so decided in the 9th Cal. in
the case of McMim vs. Whelan. The Court
there held that where q judgment was taken
without the issuing on the amended complaint
and service of summons upon the parties who
had not appeared to it and waived the service
of summons, though they had been served in
the same action with summons originally, the
judgment was void because the service was
jurisdictional
The motion TO squash the summons will have
TO be sustained, and it is so ordered.
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