62 P. 216 | Cal. | 1900
This is an appeal from an order, made and entered on motion of plaintiff, dismissing the action. It appears from the bill of exceptions that the cause was here once before on appeal, and, the plaintiff confessing error in the overruling of defendant's demurrer, the "judgment was reversed and the cause remanded." Theremittitur was, on motion of defendants, entered in the minutes of the trial court June 17, 1898, and the demurrer to plaintiff's complaint on that day came on to be heard, counsel for plaintiffs and defendants appearing, whereupon the following proceedings took place: "On motion of counsel for said defendant said demurrer was sustained by the court; plaintiff allowed five days in which to amend complaint; on motion of counsel for plaintiffs it is ordered that the above-entitled action be and the same is hereby dismissed at costs of plaintiff without prejudice; defendant allowed five days to file a bill of exceptions."
It is claimed that the court erred in allowing plaintiffs to amend their complaint. Plaintiffs did not avail themselves of the right to amend, but instead moved for a dismissal of the action. "After the reversal of the judgment the parties in the court below had the same rights which they originally had; and that court, therefore, had discretion to permit any proper amendment to the pleadings." (Heidt v. Minor,
Whether or not plaintiffs' complaint stated a cause of action, and whether or not it would have been impossible for *672 them to do so by amendment, need not be considered, for defendants were not injured by the permission to amend, inasmuch as plaintiffs did not take advantage of it.
It is contended that the court had no power to dismiss the action, citing subdivisions 3, 4, 5, and 6 of section
*673The order is affirmed.