Lander v. Flemming
California Supreme Court
Appeal from the District Court of the Eleventh Judicial District, El Dorado County. Upon motion of the defendant, after notice, as stated in the opinion, the Court dismissed the action, on the ground that the plaintiff had failed to prosecute the same with due diligence. The motion was made on the facts appearing of record, and without affidavits. The plaintiff appealed from the order of dismissal.
1Opinion of the Court
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…
2Cited by9 opinions
- California Dental Assn. v. American Dental Assn.California Supreme Court · 1979
- Ferris v. WoodCalifornia Supreme Court · 1904
- Luke v. BennionUtah Supreme Court · 1908
- Wisnom v. McCarthyCalifornia Court of Appeal · 1920
- Werner Piano Co. v. BakerIdaho Supreme Court · 1922
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