Werner Piano Co. v. Baker
Idaho Supreme Court
APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. F. J. Cowen, Judge. Action on promissory note. Judgment of dismissal. A motion to dismiss on the ground that the summons was not properly served is not in accordance with the practice of any code state. (Kubli v. Hawhett, 89 Cal. 638, 27 Pac. 57.) The right of the district court to dismiss an action must be exercised upon a just discretion.
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APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. F. J. Cowen, Judge. Action on promissory note. Judgment of dismissal. A motion to dismiss on the ground that the summons was not properly served is not in accordance with the practice of any code state. (Kubli v. Hawhett, 89 Cal. 638, 27 Pac. 57.) The right of the district court to dismiss an action must be exercised upon a just discretion. This dismissal was an abuse thereof and the judgment should be reversed on that account. (C. S., secs. 6389, 6671, 6673; 6 Eney. PI. & Pr. 920.)
1Opinion of the CourtMccarthy, J.
Appellant filed its complaint against respondent in the district court on January 14, 1915. Summons was issued on January 14, 1916. Alias summons was issued on March 15, 1917. The alias summons was not served upon respondent until April 4, 1918. ■ Respondent *497moved to quash the summons, strike the complaint and dismiss the action, on the ground, first, that the alias summons was served more than one year after the issuance of either the original or alias; second, that the action had not been prosecuted with diligence. The motion was supported by the affidavit of respondent’s attorney stating…
2Cases cited4 opinions
- Grigsby v. Napa CountyCalifornia Supreme Court · 1869
- Lander v. FlemmingCalifornia Supreme Court · 1874
- Carpentier v. MinturnCalifornia Supreme Court · 1870
- Eldridge v. KayCalifornia Supreme Court · 1872
3Cited by7 opinions
- Grant v. City of Twin FallsIdaho Court of Appeals · 1987
- Steele v. General Baking Co.District of Columbia Court of Appeals · 1954
- Hansen v. FirebaughIdaho Supreme Court · 1964
- Nagel v. WagersIdaho Court of Appeals · 1986
- Beckman v. BeckmanIdaho Supreme Court · 1965
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