Nickola v. Superior Court

SCHOTTKY, J. pro tem.

Petitioner filed in this court a petition for a writ of prohibition restraining the Superior Court of Sutter County from taking further proceedings in an action entitled

“Hazel Nickola

vs.

Earl Nickola.’’

There is little, if any, dispute as to the facts. On November 23, 1951, Hazel Nickola filed an action against Earl Niekola in the Superior Court of San Mateo County. On December 7, 1951, defendant Earl Nickola filed a motion for change of place of trial to Sutter County. On January 28, 1952, pursuant to a stipulation of the parties, previously made, an order was made by the Superior Court of San Mateo County transferring the action to the Superior Court of Sutter County. On February 4, 1952, and before the papers and

[621]

files were transmitted to Sutter County, plaintiff Hazel Nickola filed with the county clerk of San Mateo County a “Dismissal Without Prejudice.'’ ’ On February 7, 1952, the county clerk of San Mateo County sent to the county clerk of Sutter County the files in the said action, including the dismissal without prejudice. On February 11, 1952, defendant, Earl Nickola, filed an answer and cross-complaint with the clerk of the Superior Court of Sutter County. On February 29, 1952, Hazel Nickola, plaintiff in said action and petitioner herein, filed a motion to strike defendant’s answer and cross-complaint from the files, which motion was denied by the Superior Court of Sutter County on March 27, 1952.

The question to be determined is whether or not the dismissal without prejudice was effective to dismiss the action.

There can be no question as to the right of a plaintiff to dismiss an action at any time prior to the filing of a counterclaim, cross-complaint or demand for affirmative relief. (Code Civ. Proc., § 581.)

In

Rogers

v.

Transamerica Corp.,

6 Cal.App.2d 340 [44 P.2d 635, the court said at page 341: