It is a gross abuse of the restraining order of this Court to allow the complaint to remain on file for two years and a half without bringing defendant into Court for the purpose of getting a temporary injunction, and then, after obtaining the order, render it perpetual by a failure to prosecute his action for damages, and that, too, when the interests of the county were bound up by said order. Appellant's gross neglect in not prosecuting the action has been and still is detrimental to the interests of the county, and would always have remained so but for the respondent having served appellant, on May 14th, 1868, a notice of motion to dismiss, which awakened the appellant from his lethargy, who found what purported to be the original summons, issued in 1865, and had the Sheriff go through the form of serving it on the following day.
I think counsel for appellant will not seriously urge to this Court that a summons issued in August, 1865, had any force or power, as a process of the Court, to obtain jurisdictionof defendant, by service in May, 1868; if so, the Statute of Limitations is dead matter in our statute, for if the filing of the complaint and service of summons three years afterwards obtains jurisdiction of defendant, then service thirty years afterwards would be attended with the same result. (Dupuy v. Shear, 29 Cal. 241.)
Whatever of standing or position appellant acquired by the subsequent service of summons was subject to the notice of dismissal previously served by respondent. If we are right in this proposition, then the default entered by appellant was subject to the disposition of respondent's motion, which, having prevailed, the Court below did not " err in refusing to grant appellant's motion for judgment, upon the default entered in said cause."
JUDGES: Crockett, J.
OPINION
CROCKETT, Judge
This appeal is from an order of the District Court dismissing the action for want of prosecution, and awarding costs to the defendant. In such cases it has not been the practice of this Court to interfere, except where the District Court has abused the discretion which it necessarily exercises in this class of cases; and invoking the aid of this Court, it is incumbent on the appellant to establish affirmatively that there has been such abuse of discretion. Until the contrary appears, the presumption is the discretion of the District Court was rightfully exercised. The appellant has failed, we think, to show such abuse of discretion in this case. The action was commenced August 26th, 1865, and on the same day a summons was issued and placed in the hands of the Sheriff for service; but, before served, he was instructed by the plaintiff's attorney not to serve it until he received further orders. The summons was not, in fact, served until May 14th, 1868; and the excuse for this long delay is that plaintiff and his attorney were lulled into this long repose by the conduct of the Board of Supervisors in vacating and rescinding the order approving the report of the Viewers of the road, and thereby inducing the plaintiff to believe that the project of opening the road was abandoned, and that it would therefore be unnecessary to prosecute his action for damages. It appears, however, that the rescinding order was itself rescinded, and the original order was thereby left in full force; but at what particular time this occurred does not appear. It is quite apparent, however, that during the long interval which elapsed between August 26th, 1865, and May 14th, 1868, the plaintiff was not resting quietly under the belief that the proceedings for establishing the road had been abandoned. On the contrary, he commenced an action in equity to prevent the Supervisors from opening the road until the question of damages was disposed of in this action. The suit in equity came to this Court on appeal, and was decided at the October Term, 1866, (Grigsby v. Burtnett, 31 Cal. 406), and we held that the plaintiff was entitled to have the question of damages decided before the road was opened. Instead of prosecuting his action, already pending for that purpose, the plaintiff allowed it to slumber until May 13th, 1868, when he was served with notice of a motion to dismiss it for want of prosecution. On the following day he caused the summons, issued more than two years before, to be served, and the defendant having failed to answer within ten days, its default was noted, but no assessment had been made or judgment entered by the Court; and on the day specified in the notice, the defendant moved, notwithstanding the default, to dismiss the action for want of prosecution, and the plaintiff at the same time offered to prove the damages, and moved for final judgment. The Court sustained the defendant's motion, and the plaintiff insists: first--that no lack of diligence was shown; and, second--that the defendant is concluded by the default. On the question of diligence we see no reason to believe that the District Court abused its discretion, nor is the defendant concluded by the default. Notice of the motion to dismiss was served before service of the summons, and though it would doubtless have been the better practice to have obtained from the Court an extension of the time to answer until after the motion to dismiss was disposed of, nevertheless the order dismissing the cause took effect by relation from the time when the notice of the motion was served, which was prior to the service of summons. When the cause was dismissed there had been no final judgment, and the mere noting of the default did not, in law, preclude the Court from entertaining the motion to dismiss, with like effect, as if there had been no service of the summons after notice of the motion to dismiss.
We find no error in the record, and the judgment is therefore affirmed, and remittitur directed to issue forthwith.