Somers v. Bank of America

California Court of Appeal Dec 8, 1947 No. Civ. 13591Published

Before: Dooling

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Holding. The court held that a voluntary dismissal of a will contest is effective when the defendant's answer fails to allege new affirmative facts supporting a claim for relief, rendering a mere prayer for relief insufficient to bar dismissal. Consequently, the trial court's decree was reversed insofar as it purported to adjudicate the dismissed contest, but affirmed regarding the admission of the will to probate.

Issues

Whether a voluntary dismissal of a will contest is barred by a prayer for affirmative relief in the defendant's answer when the answer contains no new affirmative allegations.
Whether the trial court erred in denying a motion for continuance based on a lack of diligence by counsel.
Whether the evidence was sufficient to support the admission of the will to probate following the dismissal of the contest.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“An answer cannot be said to seek affirmative relief within the meaning of Code of Civil Procedure, section 581, subdivision 1, unless it contains affirmative allegations or introduces new affirmative matter entitling the pleader to such relief.”

“The portions of the decree purporting to decide the contest and to deny admission to probate of the earlier will were withdrawn from consideration of the court by the dismissal and are accordingly reversed.”

DOOLING, J.

Following the filing of a petition for the probate of an alleged last will of the decedent, his widow, the appellant, filed a contest before probate under Probate Code, section 370. Issue having been joined by the filing of answers, the contest on May 13, 1947, was set for trial on June 10, 1947. On June 2, 1947, respondents served a notice on appellant’s counsel that her contest was set for trial on June 10. On the morning of June 10, appellant made a motion for continuance of the trial of the contest to a later date, which was denied. Thereupon, a jury was impaneled and the further hearing of the contest was continued to the following morning. On June 11, appellant’s counsel filed with the clerk a written dismissal of the contest pursuant to Code of Civil Procedure, section 581. When the trial was resumed on June 11, counsel for appellant announced to the court that the dismissal had been filed and handed a certified copy of the dismissal to the judge, and after some colloquy between court and counsel appellant and her counsel left the courtroom.

The trial court treated the dismissal of the contest as ineffective and after the taking of the testimony of the witnesses to the will made findings that none of the grounds of contest was true and of the due execution of the proposed will and entered its decree against the contestant and admitting the proposed will to probate. The appeal is taken from this decree.

At the outset We are met by the claim of respondents that their answers prayed for affirmative relief and the attempted voluntary dismissal of the contest was for that reason ineffective. Code of Civil Procedure, section 581, subdivision 1 provides, so far as here material:

[759]

“An action may be dismissed ... in the following cases: 1. By the plaintiff, by written request to the clerk, filed with the papers in the case ... at any time before the trial . . . provided that a counterclaim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant. ’ ’

It is settled that this section is applicable to will contests.

(Voyce

Superior Court,

Somers v. Bank of America

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DOOLING, J.

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