Hubbard

This is a petition for a writ of prohibition to prevent the superior court of the county of Santa Clara from trying a case appealed to said court from a justice’s court of said county. The matter is submitted to this court upon the petition and the answer thereto filed by respondent in response to the order to show cause.

The essential facts of the case are as follows:

On the second day of November, 1902, an action was commenced before a justice of the peace in Santa Clara county by the Union Savings Bank of San Jose against Henry Hubbard by the filing of the complaint on said day. The summons was not served on petitioner, the defendant in that action, until December 14, 1905, which was more than three years after the commencement of the action. The summons never was returned to said justice court, but on the tenth day of April, 1906, the defendant therein specially appeared and moved for a dismissal of the action under section 581 of the Code of Civil Procedure upon the ground that the summons had not been served and return made within three years after the commencement of the action, and also under section 890 of the Code of Civil Procedure upon the ground that plaintiff had…