Thompson v. Spray
2 Cal. Unrep. 434
Cal.
1885
Check Treatment
ROSS, J.

The cross-complaint having been stricken from the answer of the defendant, the latter pleading was left with matters of defense only. The plaintiffs were therefore at liberty to dismiss the action at any time before trial, upon payment of costs: Code Civ. Proc., sec. 581. This they did, the dismissal having been entered by the clerk. The purported trial of the 5th of November, 1883, was therefore of an action which had been previously dismissed. Order re*435versed, and cause remanded, with directions to the court below to set aside the judgment.

We concur: McKee, J.; Myrick, J.; McKinstry, J.; Morrison, C. J.; Sharpstein, J.