Bernard

The court below, upon the application of the defendants, ordered a dismissal of this action upon the ground that the same had not, after its commencement, been prosecuted with reasonable diligence. The appeal is from said judgment of dismissal upon a bill of exceptions. The bill of exceptions contains the affidavits upon Which the defendants presented the motion to dismiss and the counter-affidavits filed by the plaintiff in resistance to the motion.

The action is one to quiet title to certain mining property situated in Placer county. The complaint was filed on the twenty-seventh day of December, 1905, in the superior court of said county, and on the same day a summons was issued by the clerk of said court and delivered to the plaintiff for service. The summons was not served on the defendants, and on the third day of May, 1906—a little over four months after the institution of the suit—counsel for respondents filed a motion and notice thereof to dismiss the action, said motion being noticed for hearing for the twenty-first day of May, 1906, and said notice and motion, together with the affidavit in support thereof, were served on the attorneys for appel lant. On the nineteenth…