Riley v. Superior Court

MUSSELL, J.

In these proceedings, petitioners seek to set aside an order vacating a dismissal filed by the clerk in an action brought in the Superior Court of Orange County and to restrain the trial court from taking any further proceedings in said action.

The complaint, for declaratory relief, was filed in Orange County on November 15, 1951. Defendant filed a demurrer

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thereto and a motion to strike portions of the complaint. On January 31, 1952, defendant filed her answer and on March 21, 1952, moved for judgment on the pleadings. The trial court continued the hearing on these matters to April 11, 1952, and on that date, prior to the hearing, plaintiffs’ attorney filed a dismissal of the action with the county clerk. Plaintiffs then objected to further proceedings at the hearing on the motions on the ground that a dismissal of the action was on file with the clerk. The objection was overruled and the court ordered that the dismissal be set aside, continuing the hearing on the motions to April 18, 1952. Plaintiffs then filed a petition for a writ of prohibition and certiorari herein.

It is conceded that plaintiffs had the right to dismiss the action under the provisions of section 581 of the Code of Civil Procedure, provided that no affirmative relief was sought by defendant in her answer and the principal question involved herein is whether such relief is sought therein.

It is alleged in the complaint, among other things, that defendant claims to own solely and exclusively an undivided one-half interest in and to real property known as the Riley Building (particularly described in the complaint) and all of three parcels of real property described on “Schedule 3” (attached to the complaint) free and clear of any rights of plaintiffs or interests

therein;

that said claim is without right and plaintiffs are and of right ought to be the owners of and entitled to an undivided one-third of an undivided one-half interest in the Riley Building and an undivided one-third interest in the property described in Schedule 3; that defendant holds the same in trust for the plaintiffs and that plaintiffs are entitled to one-third of the rentals received from the Riley Building.