There is a marked distinction between this case and Dupuy v. Shear, 29 Cal. 238, upon the authority of which this case seems to have been decided.
In that case, after more than nine years subsequent to the commencement of the action, a summons was issued upon the ex parte order of the'Judge, and was then served. Subsequently the order was set aside, and besides this, the summons having been issued contrary to the provisions of section twenty-three of the Practice Act, was unauthorized and void, and therefore there was no legal service of process. The Court thereupon ordered the complaint to be stricken from the files for want of prosecution. Here there was service of process upon one defendant four month previous to the motion to dismiss.
The grounds of the motion in this case were “that no summons was issued within the meaning of the Practice Act, and that no steps were taken to serve any process therein until four years after filing the complaint.”
The first ground is answered by the Practice Act. Section twenty-two provides that an action “ shall be commenced by the filing of a complaint with the Clerk of the Court "in which the action is brought, and the issuing of a summons thereon.” The provision in section twenty-eight, that “a copy of the complaint, certified by the Clerk, shall be served with the summons,” shows that the copy of the complaint does not constitute a part of the summons.
The want of prosecution, which may be assigned as cause for dismissal, is the present want of prosecution. When the *302plaintiff has unnecessarily or purposely delayed his preparations for trial, the cause may be dismissed for want of prosecution while the delay continues; but when he is ready, and is proceeding in the usual and orderly mode, he cannot be dismissed because of his past negligence or delay.
In all cases, (except when there is an unwarrantable delay in the service of the summons, as found in Dupuy v. Shear, in which the Court did not acquire jurisdiction of the defendant,) the dismissal is governed by section one hundred and forty-eight of the Practice Act. The enumeration therein of the cases in which the action may be dismissed is exclusive of all other cases, according to the maxim: JSxpressio unius est exclusio allerius. The next section declares that “ in every case other than those mentioned in the last section, the judgment shall be rendered on the merits.”
I think the order should be reversed.