Carvel v. Arents

SHINN, P. J.

Plaintiff brought this action seeking damages for alleged fraud in the sale of a parcel of real estate to her by Bess Tate Ayres. In addition to defendant Ayres several others alleged to have acted as brokers for the seller were named as defendants. In substance the alleged fraud consisted of representations that the property was worth much more than plaintiff paid for it, was actually worth considerably less and the further representation that it could be resold within a month at a profit to plaintiff. Defendants answered.

When the case came on for trial plaintiff was granted leave to file a fourth amended complaint by the addition of several allegations contained in a former pleading. It was stipulated that defendants would be deemed to have denied

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the allegations of the amended pleading. The so-called fourth amended complaint was not filed. Plaintiff called to the stand Bess Tate Ayres and Lucille Kasniek under section 2055, Code of Civil Procedure. The record shows these witnesses were questioned but does not contain their testimony. Court was adjourned to the afternoon session. When court reconvened plaintiff, by her attorney (other than her present attorney), addressed the court as follows: “Your Honor, the plaintiff will at this time desire to file a request for entry of dismissal without prejudice as to all defendants.” Defendants objected that the action could not be dismissed without prejudice, the trial having commenced. The court stated: “The motion will be granted, without prejudice.” There was brief discussion thereafter; defendants continued to object, plaintiff’s counsel said his authority was a certain law professor, although the professor was not quoted, and it does not appear that anyone looked at section 581 of the Code of Civil Procedure before the court announced its ruling, and later said the ruling would stand. The record shows that on the same day plaintiff’s attorney also filed with the clerk a request for a dismissal without prejudice as to all defendants and that a dismissal was thereafter entered by the clerk. Defendants appeal.

Section 581, subdivision 1, Code of Civil Procedure, allows a dismissal, by plaintiff by written request to the clerk at any time before the actual commencement of the trial. Subdivision 5 of the section allows a party to dismiss his action with prejudice at any time before decision is rendered by the court. Also dismissal without prejudice may be had after actual commencement of the trial “either by consent of all of the parties to the trial or by order of court on showing of just cause therefor.”