90 Cal. 389 | Cal. | 1891
— The plaintiff commenced an action in ejectment against the defendants by filing a complaint on the 28th of November, 1887. Summons was issued iff reon upon that day, but no service thereof was ever made upon either of the defendants. March 16, 1888, the attorneys for the plaintiff filed with the clerk of' the court the following paper writing, viz.:—■
“ [Title of court and cause.]
“ The above-entitled cause is hereby dismissed, and the clerk of the above-named court is hereby authorized to enter said dismissal of record.
“ O’Brien & Morrison,
“ Attorneys for Plaintiff.”
At the time of filing said dismissal, no appearance had been made in the action by or on behalf of either of the defendants, and the said dismissal was within a day or two thereafter entered by the clerk in his register of actions. September 13,1888, the appellants served upon the plaintiff and filed with the clerk an answer to the
Section 581 of the Code of Civil Procedure provides that “ an action may be dismissed, or a judgment of nonsuit entered, in the following cases: 1. By the plaintiff himself at any time before trial, upon payment of costs; provided, a counterclaim has not been made, or affirmative relief sought by the cross-comr plaint or answer of defendant.....The dismissal mentioned in the first two subdivisions of this section is made by entry in the clerk’s register; judgment may thereupon be entered accordingly.”
At the time the plaintiff gave the notice of his intention to move for an order that a judgment of dismissal of said action be entered, the defendants had not sought any affirmative relief by their answer, nor had they filed any cross-complaint. The above section of the code
When the matter came before the court for hearing, and it determined that the plaintiff’s motion should be granted, the court, upon having its attention called to the fact that subsequent to the making of the motion the defendants had filed a cross-complaint, was justified in striking that also from the files.
The judgment is affirmed.
Garoutte, J., and Paterson, J., concurred.