69 P. 299 | Cal. | 1902
The petitioner brought her action for divorce. The defendant answered by denials, without seeking affirmative relief. Thereafter petitioner filed a proper notice of dismissal of her action with the clerk of the court, and entered in a book kept for that purpose by the county clerk of the city and county of San Francisco a direction to the county clerk to enter an order of dismissal. The clerk refused to do so, basing his action upon an order of the superior court directing that all proceedings in relation to the dismissal be stayed, unless the plaintiff, within five days after *553 a copy of the order, pay to defendant the amount of his costs, and if plaintiff failed to make such payment, then the attempted dismissal of the action to be annulled and set aside, and the cause placed upon the calendar for trial. Plaintiff, before the court, objected to this order, refused compliance with it, and objected to the further order of the court staying the entry of the order and setting the action for trial. Plaintiff had paid the costs of entering the judgment, but the costs which the court insisted she should pay, as a prerequisite to her right to the entry of the order of dismissal, were the costs embraced in the cost bill filed by the defendant. Petitioner, therefore, has sued out her alternative writ for prohibition to restrain the court from proceeding further in the matter.
The only costs which a plaintiff is required to pay before dismissal of his action are the clerk's costs for entering the order. Subdivision 1 of section
It appears, therefore, that plaintiff had done everything that the statute required, and stood entitled, as an absolute right, to have her order of dismissal entered. In this she was prevented by the order of the court directing the clerk to refuse to enter the order until plaintiff had complied with an illegal condition. As is said in Page v. Superior Court, above quoted, in a proper case, if his fee is paid, the clerk will, on motion, be compelled by the court to enter a judgment of dismissal or nonsuit, and the court will not require the party interested to resort tomandamus. Here the plaintiff applied to the court, in furtherance of her right thus clearly pointed out, and the court not only refused her the right, but imposed upon her an illegal condition as the price of her order of dismissal. This the court had no right to do. Its sole power and its sole jurisdiction under the circumstances indicated was to have ordered the proper entry of dismissal in the register. Its refusal to do this, and its subsequent order setting the case for trial, were unwarranted and in excess of its jurisdiction. Against this it is urged that inPage v. Superior Court it was decided that the action was still pending until judgment of dismissal was "entered accordingly." At the time of the decision in the Page case the statute declared (Code Civ. Proc., sec.
Let the writ issue as prayed for.
Beatty, C.J., Van Dyke, J., and McFarland, J., concurred. *556