Rathbun

This is a proceeding in mandate to compel the San Bernardino Superior Court to dismiss a civil action for failure to bring it to trial within two years after it was filed. Petitioner’s motion to dismiss the action was denied in the trial court.

In November 1965 the real parties in interest, Doris Ruby Sanders and Gussie Earnest Sanders (plaintiffs), filed suit against petitioner, Ellsworth Alvin Rathbun, and his alleged employer, Iowa Co-Op Association (defendants), to recover damages for personal injuries sustained in an auto-truck collision which occurred on November 29, 1964, on Interstate Highway No. 10 near Colton, California. At the time of the accident, the plaintiffs were riding in a Mercury automobile which collided with a track allegedly owned by defendant Iowa Co-Op and operated by the defendant Rathbun.

In June 1969 the defendant Rathbun was served with a copy of the summons and complaint in Lincoln, Nebraska, in conformity with an order of court authorizing personal service outside the state. (Veh. Code, § 17455.) On October 15, 1969, Rathbun filed a motion to dismiss the action for plaintiffs’ purported failure to prosecute the action diligently.…