McColgan

This is an appeal from an order dismissing an action made after hearing upon notice and motion of defendant.

The original records in the action were destroyed in the conflagration of April, 1906. No action whatever was thereafter taken in the action until December 7, 1909, when plaintiff filed a petition for the restoration of the records. Defendant thereupon gave notice of a motion for a dismissal of the action, as well as for a denial of the petition for a restoration of the records, upon grounds stated in the notice, involving laches in the plaintiff in failing to serve summons in the action, or to take any steps to bring the action to trial, and in failing to take steps to restore the records for nearly four years, and for the> further reason that all rights of plaintiff were barred by the provisions of section 581a of the Code of Civil Procedure.

The court granted the motion to restore the records, as prayed for by plaintiff, but dismissed the action. The order dismissing the action is general, and does not state the particular grounds upon which it is based. Taking the evidence contained in the record and in the affidavits most favorable to the respondent as true, which we…