London v. Morrison

California Court of Appeal Oct 17, 1950 No. Civ. 17874Published

Before: Moore

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Holding. The court held that an action must be dismissed under Section 581b when transfer fees remain unpaid for one year after an order of transfer, and a plaintiff cannot defeat this mandatory dismissal by filing a voluntary dismissal after the one-year period has expired.

Issues

Whether a plaintiff may voluntarily dismiss an action after the one-year period for paying transfer fees under Section 581b has elapsed.
Whether Section 581b is a mandatory statute that overrides a plaintiff's right to voluntary dismissal under Section 581.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 581b is a separate statute of equal authority with that of 581. Also, since respondents obtained the order for transfer and a year having expired, they gained a definite substantial right under 581b for a mandatory order of dismissal.”

“The latter is not a permissive statute, but is positive and mandatory.”

MOORE, P. J.

Plaintiffs appeal from (1) “the judgment or order” entered on January 25, 1950, setting aside the dismissal of the action entered by the clerk on plaintiffs’ request; (2) the judgment or order entered on February 15, 1950, granting defendants’ motion to dismiss the action and ordering plaintiffs’ motion to dismiss off calendar. Inasmuch as the appeal involves technical procedural questions, a chronology of events from and after the filing of the complaint is essential to a consideration of the points discussed. They follow.

[877]

February 18, 1948, action filed.

September 25, 1948, demurrer and notice of motion for change of place of trial filed.

November 9, 1948, order entered changing place of trial to San Diego.

November 10, 1949, defendants file notice of motion to dismiss action under section 581b.

December 15, 1949, plaintiffs file their request for entry of voluntary dismissal.

December 19, 1949, defendants ’ motion to dismiss the action is ordered off calendar.

January 4, 1950, defendants file notice of motions (1) to set aside plaintiff’s voluntary dismissal and (2) to restore defendants’ motion for dismissal to the calendar.

January 11, 1950, plaintiffs file their opposition to defendants’ motion.

January 25,1950, defendants’ motion to set aside plaintiffs’ voluntary dismissal is granted and defendants’ motion to restore to the calendar their motion to dismiss the action is granted.

February 8, 1950, plaintiffs file notice of motion for permission to dismiss the action without prejudice.

February 15, 1950, order entered dismissing the action on defendants’ motion under 581b and defendants are awarded judgment against plaintiffs for their costs.

Appellants’ contentions are: (1) section 581

London v. Morrison

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MOORE, P. J.

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