Leese v. Sherwood, 21 Cal. 151

Leese v. Sherwood

21 Cal. 151 | Cal. | 1862

Norton, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

By the terns of the deed, the §14,000 were to be paid when the action of Rico should be finally decided in favor of the defendants (the plaintiffs in this action) as against all claims made by said Rico. The terms of the contract executed simultaneously with the deed are in effect the same. The stipulation is, not that all claim of Rico was to be finally adjudged, but that the particular action then pending should be finally decided. By the contract it is stipulated that a dismissal of the action should not be considered a final decision, provided a new suit for the same subject matter should be commenced by Rico on or before the eleventh day of April next thereafter. This stipulation cannot be construed as an agreement that a dismissal should in no event be deemed a final decision. The fact that the dismissal did not occur until after the time fixed for bringing a new action had no other effect than to render the stipulation as to a dismissal and a new action, nugatory under the circumstances. Perhaps it might be held, that this stipulation amounts to an agreement between the parties as to the sense in which they employed the term “ final decision,” and that for the purposes of that transaction a dismissal of the action, if no new suit was brought, should be deemed a final decision, whatever might be the effect of those terms in other cases. But it is not necessary for the purposes of this case to give any such effect to the stipulation. *164A dismissal of an action is a final decision of the action, and it is a final decision of the action as against all claim made by it, although it may not be a final determination of the rights of the parties as they may be presented in some other action. In the case of Dowling v. Polack (18 Cal. 625) the Court say: “ In effect a dismissal is a final judgment in favor of the defendants; and although it may not preclude the plaintiff from bringing a new suit, there is no doubt that for all purposes connected with the proceedings in the particular action, the rights of the parties are affected by it in the same manner as if there had been an adjudication upon the merits.” The money became payable upon the dismissal of the action.

The complaint does not employ the same language as the contract ; that is, instead of averring that the action had been finally decided, it sets forth the fact of dismissal.But, as we have seen, they are in effect the same, and so the finding of this fact by the Court determines the material issue in the case, and hence it is immaterial whether or not the fourth finding can be regarded.

Ashley was not a necessary party to this action. If the order in his favor, drawn by the plaintiff, J. P. Leese, on the defendant and Hellmann, operated as an assignment of so much of the debt, it made him their creditor for so much, but did not make him a joint owner of the whole debt.

Nor was Sullivan a necessary party. The provisions in the contract relative to his mortgage only amount to an agreement binding J. P. Leese, personally, to pay off that mortgage out of the money to be paid by the defendant. The provisions of the decree in relation to both Ashley and Sullivan are, to say the least, as beneficial to the defendant as the facts would authorize.

The judgment must be affirmed.