I dissent.
Section 990 of the Code of Civil Procedure, which is here in question, provides that the summons “must be served in the same manner, and returnable within the same time, as the original summons”. Section 581a of the Code of Civil Procedure provides that the court must dismiss the action “unless summons shall have issued within one year, and all such actions must be in like manner dismissed, unless the summons shall be served and return thereon made within three years after the commencement of said action”.
In the instant case the action was commenced June 17, ■1935, and the summons was not issued until May 18, 1937. It is therefore evident that the summons here in question was not issued until one year and eleven months had elapsed after the commencement of the action; and, thus pursuant to the mandate of section 581a of the Code of Civil Procedure the court properly granted the motions to quash service of summons and denied the subsequent motions to set aside these 'orders.
*417This court, in Carson v. Lampton, 23 Cal. App. (2d) 535 [73 Pac. (2d) 629], has previously decided the question herein involved contrary to the majority opinion in the present case, and in my view correctly. Mr. Justice Doran at page 538 there says:
“Appellant contends, in substance, that the provision in section 990, namely, that the summons ‘shall be issued . . . and returnable within the same time as the original summons’, should be construed as an unequivocal requirement that the summons in question must be issued and returned within the same time as the original summons might have been issued and returned, after the filing of the original complaint.
“Respondent contends, however, that said section ‘does not limit the time within which the summons specified in section 989 shall be issued by the clerk’; that by the use of the word ‘returnable’ in section 990, it is merely ‘intended that a joint debtor summons must require the defendant to appear within ten days if served within the county where the action is brought, or within thirty days if served elsewhere’.
“Respondent’s position is untenable. As hitherto declared, ‘It is the policy of the law to put an end to litigation, and to aid the vigilant and not those who sleep upon their rights’. [Citing cases.] Moreover, it is a well-recognized rule of construction that where a statute is susceptible of two constructions, one leading inevitably to mischief or absurdity, and the other consistent with justice, sound sense and wise policy, the former should be rejected and the latter adopted. [Citing eases.] It can scarcely be contended with reason that as to one section of the code, regarding the subject herein referred to, all limitation with respect to time is intended to be disregarded, when, with reference to all others, the element of time receives express if not emphatic consideration. Necessarily, sections 989 and 990 are to be construed with related sections and as well with the provisions of the code on limitations, and so construed, in the light of the foregoing, are not without limitation as to time, but, to the contrary, contemplate that the summons referred to must be issued and returned within the same time that the original •summons might have been issued and returned after the filing of the original complaint.”
*418For the foregoing reasons in my opinion the orders appealed from should be affirmed.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 14, 1938.