Lander v. Flemming

         It devolved on the plaintiff to show facts which would excuse him from the negligence made apparent by his delay. The whole question involved in this case was decided in Eldridge v. Kay , 45 Cal. 49; also Grigsby v. Napa County , 36 Cal. 585.

         OPINION          By the Court:

         1. The notice of appearance served on the plaintiff--" now comes the above-named defendant, and appears in the said action for the sole purpose of making a motion to quash the summons in, and dismiss, said action" --was a sufficient appearance to entitle the defendant to be heard upon the motion.

         2. The facts appearing of record in the Court below, viz: that the complaint was filed and the summons issued in October, 1870, and that the summons was not served until January, 1873--made a prima facie case of lack of diligence upon the part of the plaintiff in the prosecution of the action, and which it was his duty to overcome, at the hearing of the motion, by showing the circumstances, if any, to excuse his apparent tardiness in pursuing the defendant. He, however, made no attempt in this direction, and we think that the action was properly dismissed.

         Judgment affirmed. Remittitur forthwith.