Opinion
Appeal from the District Court of the Eleventh Judicial District, El Dorado County.
The plaintiff filed his complaint February 3rd, 1877, to quiet title to a tract of land. In March, 1878, the defendant, by his attorney, moved to dismiss the case, on the ground that no summons had been issued within the time required by law. The motion was signed: " W. W. Likens, Attorney for Defendant for this motion only." The motion was granted, and the plaintiff appealed.
COUNSEL:
Chas. F. Irwin, for Appellant, argued that sec. 406 Code of Civil Procedure is merely directory; also, that the appearance of defendant was a general appearance, waiving service of summons.
W. W. Likens, for Respondent.
OPINION THE COURT
1. The Court properly dismissed the action, inasmuch as the summons was not issued within one year after the complaint was filed. ( Code of Civil Procedure, sec. 406.)
2. The appearance of defendant for the motion only to dismiss was not a general appearance which waived his right to make the motion.
Judgment affirmed. Remittitur forthwith.