Polony

Kathleen Polony (Polony) filed an action for damages for personal injuries resulting from an automobile accident against Robert Richard White (Robert) and Richard Arthur White (Richard) (father and son). On the motion of defendant the court, in reliance on Davis v. Hart, 123 Cal. 384 [ 55 P. 1060 ], dismissed the action for failure to serve and return summons within three years from the filing of the action under the provisions of Code of Civil Procedure section 581a. Polony appeals from the order of dismissal.

Contentions

Appellant contends:

I The court abused its discretion in granting the motion to dismiss.

II The three-year period specified in Code of Civil Procedure section 581a was tolled from June 25, 1969 (when Robert died) until October 8, 1971 (when an administratrix was appointed for his estate).

Facts

We have prepared a chronological summary of relevant dates which is set forth in the margin.

Discussion

Appellant argues that Davis v. Hart, 123 Cal. 384 [ 55 P. 1060 ], decided in 1899 (which was relied on by the trial court) does not express the modern trend of thinking and that it should be expressly overruled. Such is not our province as an…