211 P. 29 | Cal. Ct. App. | 1922
In this case the appeal is taken by the defendants from the judgment of dismissal entered on the motion of the plaintiffs. The proceeding was brought by certain alleged heirs of William Knauft, deceased, for the purpose of securing the revocation of an order admitting to probate the will of said deceased. Defendants demurred to the petition and moved to strike it from the files. The demurrer was overruled and the motion denied.
[1] It is recited in the judgment that the proceeding was called for trial on the twenty-fifth day of January, 1922, and that "on the thirtieth day of January, 1922, when said cause was reconvened for trial, and before the submission thereof, the said plaintiffs, by their counsel, in open court moved for a dismissal of said cause and petition, without prejudice, which said motion of plaintiffs was granted by the court, over the objection of the defendants thereto." The judgment dismissing the action declared such dismissal to be without prejudice to the filing of a new petition, and it is particularly to the latter condition that appellants address their complaint.
It is insisted first that the court had no authority to so qualify the judgment of dismissal as to give to the petitioners the right to further prosecute a proceeding for the revocation of the probate order. It seems to be well settled under our practice that a party may at any time, before final submission of a cause, dismiss the same (sec.
The judgment appealed from is without error and should be affirmed, regardless of the questions suggested as being involved under the rulings on demurrer and motion to strike the petition from the files.
The judgment is affirmed.
Conrey, P. J., and Shaw, J., concurred.