Mathews Cadillac, Inc. v. Phoenix of Hartford Insurance

Mathews Cadillac, Inc. (Mathews) appeals from an order and judgment of dismissal made pursuant to Code of Civil Procedure section 581a for failure to have its judgment entered within three years after service of summons on defendant where no answer had been filed. On March 16, 1971, Mathews filed its complaint for breach of contract, breach of warranty, negligence and property damage naming seven defendants including, inter alia, V.P. Construction, Inc. (V.P.) and Larry S. Carroll, as administrator with will annexed of the estate of Vincent R. Provenzano, deceased (Carroll).

The action was based upon alleged defects in the construction of an apartment house project causing property damage. V.P. was personally served with summons and complaint on April 19, 1971; Carroll was served the following day. V.P. did not answer and a default was entered on this failure (June 24, 1971).

Meanwhile, V.P. on March 1, 1971, filed a petition in the United States District Court, San Diego, seeking to be adjudicated bankrupt. That court adjudicated V.P. bankrupt and on June 30, 1971, entered its order of discharge.

On December 1, 1971, Mathews filed its first amended complaint setting…