Ferris

The trial court granted defendant’s motion to dismiss the action on the ground of unnecessary delay in serving summons. The complaint duly pleaded a former judgment between the same parties, in the same court, as the cause of action. An execution had been taken out, but was returned nulla tona. The summons in the present action was issued on the day the complaint was filed, and was served two years and one month thereafter. Plaintiff appeals from the judgment of dismissal.

In support of the motion the affidavit of defendant Wood was read, in which he stated that his place of residence was then, and had been for several years, the same as that of plaintiff's attorney, and that they were well acquainted with each other, and had met frequently during the past five years, and that defendant’s place of residence was also well known to plaintiff; that “during the past two years prior to the service of said summons upon affiant, affiant had conversed with said plaintiff about the matters mentioned in the complaint in this action”] that plaintiff at no time informed affiant of the commencement of this action; and that the summons was not placed in the hands of any officer for service…