32 Wash. 247 | Wash. | 1903
The respondent, who was plaintiff below, commenced an action in the superior court of Walla Walla county, averring-, in substance, that she was the executrix and devisee of a certain will left by her deceased husband; that doubts and controversies had arisen as to her rights and title thereunder, and that she was unable to carry into effect the bequests made by the maker of the will because of these doubts and controversies. She prayed that she have the aid of the court in the construction of the
“And after argument of counsel upon said motion of the said plaintiff and the submission thereof by them, the court sustains said motion and dismisses this action at the cost of said plaintiff, without prejudice to the said defendants to bring an action embodying the alleged cause of action set up in their answers and cross-complaints herein, and declines to take further action in the premises.”
This appeal is from the judgment of dismissal.
The appellants do not question the right of the respondent to abandon her cause of action at any stage of the proceedings, and have a dismissal thereof, so far as she is concerned; but they contend that they, having set up affirmative matter and prayed for affirmative relief, have the right to have the judgment of the court thereon as to the sufficiency of such affirmative matter to state a cause of action against the respondent, and a trial thereon, if adjudged or conceded to be sufficient, and that the abandonment or dismissal by respondent of her own cause of action does not operate as a dismissal of the cause of action
The appellants moved in the court below for default on their answers, and urge here that the cause be remanded with instructions to grant the default. But, as the trial court dismissed the action on the respondent’s motion before reaching the motion for default, the cause will be remanded with instructions to reinstate the case, and pro