Stanley

The complaint was filed May 10, 1893. The summons was served on all the defendants except Gillen, who has not been served, on May 4, 1896. On May 5, 1896, defendant Stivers served notice of motion to dismiss the action on the ground of unreasonable delay in the service of the summons and in the prosecution of the action. Defendants Lial and Lyons gave a similar notice, and on June 1, 1896,-the court rendered judgment of dismissal as to all the defendants; as to Gillen on the motion of the court. The hearing was upon the papers on file in the action and upon affidavits. Plaintiff appeals from the judgment and upon bill of exceptions.

There is no dispute as to the facts. The only question is whether there was abuse of discretion. Section 581, subdivision 7, of the Code of Civil Procedure provides that no action shall be further prosecuted and all actions shall be dismissed unless summons shall have issued within one year and shall have been served within three years after the commencement of the action. Before this section was amended, the power to dismiss the action for the causes named was wholly discretionary. How it is com *178 pulsory where the summons is not issued within one…