Hughes & Ladd, Inc. v. Rogue River Paving Co.

The within action was commenced by the filing of a complaint in the superior court on September 6, 1968. More than seven months later, on April 24, 1969, plaintiff obtained an order for service of summons upon defendant, a foreign corporation, by deliveiy to the Secretary of State of California. (Code Civ. Proc., § 411, repealed 1969, replaced by Code Civ. Proc., § 416.10 effective 1970.) Service, was effected on a date not shown by the record and on August 22, 1969, approximately 11 'A months after the complaint was filed, defendant filed its answer.

The case was not brought to trial within five years from the commencement of the action and, on October 30, 1973, on motion of the *313 defendant, was dismissed pursuant to section 583, subdivision (b), of the Code of Civil Procedure. 1 Plaintiff appeals from the ensuing judgment, arguing that the five:year statutory period should have been tolled; i.e., extended, in either of two respects.

Plaintiff first urges that the trial court erred by not tolling the 5-year period for the time which elapsed between the filing of the complaint and the filing of defendant’s answer; namely, 11 .months and 16 days. This argument is…