McDonagh

In each of these two wrongful death actions against defendant Gourneau and others, consolidated below as well as here, the trial court granted Gourneau’s motion to dismiss for failure to file return of summons and have judgment entered within three years, absent a stipulation by the parties that the above time be extended, pursuant to section 581a, Code of Civil Procedure. The appeal in each matter is from the order removing Gourneau from the case, it being contended that the court erred in vacating a stipulation (extending time) executed by him more than five years after he was served.

There is no dispute as to certain essential facts. In the McDonagh case summons was issued on August 7, 1961, and Gourneau was thereafter served on August 31, 1961; return of service was not filed, however, until June 10, 1966. In the Huebner case, summons was issued on August 31, 1961, Gourneau being served the same day;, but the return of such service was not made until May 12, 1967. At the time of each service Gourneau was in custody awaiting the disposition of felony charges arising from the accident in question. Upon subsequent commitment to the Youth Authority, he remained with that…