72 P. 716 | Cal. | 1903
Foreclosure of mortgage. Plaintiff had judgment, from which and from the order denying her motion for a new trial defendant appeals. The following are the facts in the case: Defendant executed and delivered to plaintiff her promissory note, dated December 9, 1891, for ten thousand dollars, payable one year after date, and gave her mortgage to secure payment of same. On October 23, 1893, plaintiff filed its complaint asking foreclosure of said mortgage, and summons duly issued and was returned not served. Thereafter affidavit was made that defendant was *92
concealing herself to avoid service, and service was made by publication of summons agreeably to an order of court; and thereafter, on motion of plaintiff, a default judgment was duly made and entered as prayed for in the complaint, on December 7, 1895. Thereafter defendant made a motion in said action to vacate and set aside said last-named judgment on the ground, among others, that the judgment had been entered through the mistake, inadvertence, surprise, and excusable neglect of defendant. Said motion was granted January 10, 1896, by order of court. By the order the default of defendant was set aside and the judgment vacated and execution was recalled. Leave was granted defendant to answer the complaint, counsel for plaintiff consenting to all said orders. Defendant did not answer, and without further proceedings plaintiff, on March 21, 1896, filed a voluntary dismissal of the said last-mentioned action, "without prejudice, at plaintiff's costs," and on the same day the court made an order by which it "adjudged and decreed that . . . plaintiff take nothing by this its said action against . . . defendants, but that judgment of dismissal be and the same is hereby entered herein without prejudice and at plaintiff's costs." Judgment was accordingly entered, and on the same day, in addition to the foregoing facts found by the court in the present action, it was also found "that said judgment of dismissal of said former action commenced as aforesaid on, to wit, the twenty-third day of October, 1893, was not a judgment on the merits, and is not a full nor complete nor any bar to the present action, nor to the cause of action set forth in the complaint herein." It appears that on the same day of the dismissal of the former action plaintiff filed its complaint in the present action, which was in all respects similar to the complaint in the first action, and on the same note and mortgage. Summons was duly issued and served personally on defendant, and she answered. In her answer she pleaded as a separate defense the facts above set forth touching the first action, and alleged that "the judgment of dismissal therein, on motion of plaintiff, is a full and complete bar to this action and to the cause of action set forth in the complaint herein." It is now contended by appellant that by the dismissal "plaintiff withdrew and abandoned its former action, which was equivalent to a retraxit." (3 Blackstone's Commentaries, 296.) Certain cases decided by *93
this court are cited to the effect that, after an action has been tried and submitted, the plaintiff has no right to dismiss it; nor has the court, then, any authority to enter an order of dismissal without the consent of defendant. (Citing Heinlein v.Castro,
We do not think the dismissal of the first action was a bar to the second. As was said in Westbay v. Gray,
The judgment and order should be affirmed.
Haynes, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Henshaw, J., Lorigan, J.
Hearing in Bank denied.