Bernstein

We have issued alternative writs of mandate and prohibition by means of which the petitioners, in effect, seek to compel dismissal of an action commenced against them, for failure (1) to serve and return summons within three years as required by Code of Civil Procedure section 581a, and (2) to bring the action to trial within two years (Code Civ. Proc., § 583). The superior court had denied a motion to dismiss taken under the authority of those code sections.

We first consider the proceedings as they relate to the failure to serve and return summons within three years.

Code of Civil Procedure section 581a provides, as pertinent here, “All actions, heretofore or hereafter commenced, must be dismissed by the court ... on its own motion, or on the motion of any party interested therein, . . . unless the summons, shall be served and return thereon made within three years after the commencement of said action, except where the parties have filed a stipulation in writing that the time may be extended. But all such actions may be prosecuted, if general appearance has been made by the defendant or defendants, within said three years . . .; provided, that, ... no dismissal shall…