Kelly

This action was instituted by appellant as plaintiff in the court below to recover a deficit resultant after a sale had been made under the provisions of a deed of trust securing a promissory note. The defendants named in the complaint were J. Albert Ferbrache and the respondent Mary J. Ferbrache, joint makers of said promissory note.

The complaint was filed February 8, 1926, and summons issued the same day. Defendant Albert Ferbrache was duly served with complaint and summons within two months thereafter, and judgment was subsequently rendered against him. Respondent Mary Ferbrache, however, was not served with either summons or complaint until August 6, 1929, a period approximately three years and six months after the commencement of the action—when an alias summons was served upon her.

It is apparent from the facts stated that the failure of appellant to serve respondent with summons within three years after the commencement of the action immediately called into operation the provisions of section 581a of the Code of Civil Procedure, which have been repeatedly held in a long line of cases to impose a mandatory as well as statutory prohibition upon the superior court from…