4/7/2024 0 Comments California motion to dismiss![]() If, however, he appears and asks for any relief which could be given only to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance regardless of how adroitly, carefully or directly the appearance may be denominated or characterized as special. ![]() The test is-Did the party appear and object only to the consideration of the case or any procedure in it because the court had not acquired jurisdiction of the person of the defendant or party? If so, then the appearance is special. The statement of a defendant or party that he is making a special appearance is not necessarily conclusive. ![]() "Whether an appearance is general or special is determined by the character of the relief sought and not by the intention of the party that it shall or shall not operate as a general or special appearance. That after five years had elapsed from the time an action is filed, and said cause has not been brought to trial, the trial court loses jurisdiction over said action for all purposes, except to dismiss the same. That the motion to dismiss under section 583 of the Code of Civil Procedure is not a general appearance, and that, therefore, the court had no right to order the default of the defendants entered. "Petitioners' contentions herein are twofold: A. Based upon such affidavits, the filing of which is alleged in respondent court's answer to the petition herein, and which filing is undenied, the court denied the motion of petitioners on the ground that they had either secreted themselves within the State of California to prevent service of summons, or had resided outside the State of California, by reason of which respondent court determined that at no time did it have the power to proceed to trial in said action. ![]() Proc.) In the aforesaid notice of motion it was stated specifically that the moving parties 'will make a special appearance for the purpose of moving this Court for an order dismissing the above entitled action.' Without narrating in detail each and all of the acts done by plaintiff in the action to effect service of complaint and summons upon petitioners, as defendants therein, suffice it to say that at the hearing of the aforesaid motion in respondent court, there were introduced various affidavits from which it appeared that plaintiff had made constant, diligent and unceasing, but unavailing, efforts to serve petitioners with process throughout the years intervening between the filing of the action and the hearing on the motion to dismiss same. On April 21, 1941, petitioners herein as defendants in the action served and filed a notice of motion to dismiss the action for want of prosecution, by reason of the fact that five years had elapsed since the filing thereof. Bertrand, and upon the same date summons was issued. On April 18, 1935, an action was commenced in respondent superior court against petitioners by one Charles R. "In this proceeding, the petitioners claim that they are entitled to a writ of prohibition restraining respondent court from rendering judgment against petitioners, following the entry of their default in an action brought against them in said court. In stating the reasons for the decision, Mr. Upon a further consideration of the questions presented by the petitioners in this proceeding, the opinion upon which the case was decided when the matter was before the District Court of Appeal, and now modified in part, is adopted as the opinion of this court. O'Connor, County Counsel, Douglas De Coster, Deputy County Counsel, and Victor L. Macfarlane, Schaefer, Haun & Mulford, Macfarlane, Schaefer & Haun and William Gamble for Petitioners. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.
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