Hubbard

Appeal from a judgment denying application for writ of prohibition.

Appellant brought this action in the superior court of Santa Clara county to obtain a writ, prohibiting defendant from proceeding to try an action against appellant pending in the said justice court, and wherein, as appears by the record, summons was neither served on defendant in that action (plaintiff herein) nor returned within three years from the commencement of the action.

Appellant contends that as the summons in the action in the justice court was not served until after the expiration of three years from the commencement of the action, and was not returned at all, and as defendant in said action (plaintiff herein) never appeared in said action, save to move for the dismissal thereof, the said justice court is without jurisdiction to proceed further in said action, save to dismiss the same under subdivision 7 of section 581, Code of Civil Procedure.

Respondent contends that section 581, Code of Civil Procedure, has no application to actions in justice courts, and also that whether the justice court has or has not jurisdiction to try the action, the defendant in that action (plaintiff herein) has a plain,…