24 Mont. 352 | Mont. | 1900
after stating the case, delivered the opinion of the court.
The plaintiff contends that at the time!she filed the prmaipe for dismissal she paid all the costs of the defendants in the action, and that neither of the answers stated a counterclaim or sought affirmative relief, and that therefore the action was dismissed, and the court was thereafter without jurisdiction. Section 1004 of the Code of Civil Procedure is as follows: “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 answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon. (2) By either party upon the written consent of the other. (3) By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. (4) By the court, when upon the trial and before the submission of the case the plaintiff abandons it. (5) By the court, upon motion of the defendant, when upon the trial the plaintiff fails to
Nor do we think that the plaintiff complied with the requirement of Subdivision 1 of Section 1004, supra, that he must pay costs as a condition to a dismissal by himself before trial. The compensation of a receiver is taxable costs. (Hutchinson v. Hampton, 1 Mont. 39; Ervin v. Collier, 2 Mont. 605.) The compensation of a legally appointed receiver, while primarily chargeable to and payable out of the property or funds in his hands, as was held in Hutchinsion v. Hampton, supra, is nevertheless (in the absence of exceptional facts) ultimately taxable to the losing party, whose wrong occasioned the appointment, as was declared in Ervin v. Collier, supra. The receiver in Cornue v. Root, et al., was appointed upon the application of the plaintiff, who sought thereafter to dismiss the action without paying the amount of the costs chargeable against the defendants’ interest in the real property — indeed, it is not admitted that the plaintiff has any interest therein. The attempted dismissal by the plaintiff, without payment of the costs occasioned by her acts, was ineffectual. At the common law neither a disco untinuance nor a dismissal could be entered, except by order of the court or of the chancellor.
The defendant, as the judge of the court over which he presides, has jurisdiction of the action. Let judgment be entered setting aside the alternative writ of prohibition, denying a peremptory writ, and dismissing the proceedings.
Judgment for the Defendant.