Murray

This is an action to foreclose a mortgage on real property.

The complaint was filed and the summons issued on December 26, 1891. The summons was served upon the defendant on April 3, 1893, and on the 12th of that month defendant served notice upon the plaintiff that he would, on May 1,1893, move the court to dismiss the action, on the ground that the summons was not served within the time required by law. At the time named *512 the motion was heard by the court and taken under advisement until the 15th of the same month, when the motion was granted and judgment entered dismissing, the action solely “ on the ground that the summons was not served within one year after the commencement of the action.” From this judgment the plaintiff appeals.

The action of the court was based upon subdivision 7 of section 531 of the Code of Civil Procedure, which was added to the code by an amendment made in 1889, and reads as follows:

The respondent contends that this language, when properly construed, means that the summons must be both issued and served within one year after the complaint is filed, and whether this be so or not is the only question presented for decision.

Prior to the…