Long v. Superior Court

TURRENTINE, J.,

pro tem.

It appears that petitioner filed an action against certain defendants to quiet title to real estate in Orange County, setting forth her claim to the property in detail and alleging that defendants had no title in the property. The answer denied the plaintiff’s title and asserted title in certain of the defendants and asked that certain defendants’ title be quieted. At the conclusion of plaintiff’s evidence defendants moved the court for a nonsuit and during argument thereon, plaintiff consented to the nonsuit being granted and filed a voluntary dismissal with the clerk of the court. Defendants then asked for a judgment quieting their title against plaintiff without producing or offering to produce any evidence. Respondent court ordered judgment for the defendants quieting their title and ordered defendants to prepare findings of fact and conclusions of law and judgment. Thereupon, petitioner herein (plaintiff below) sought and obtained an alternative writ of prohibition. By its return the respondent court declares it will sign the findings of fact and conclusions of law and judgment for defendants unless the writ herein is made peremptory.

When the defendants made their motion for nonsuit they waived their right to rely upon the allegations seeking affirmative relief in their answer as preventing a voluntary dismissal by the plaintiff. In effect they were asking the same relief, to wit, dismissal, which the plaintiff voluntarily gave by filing the dismissal and consenting to the' nonsuit being granted. “A nonsuit, granted on the motion of the defendant, is equivalent, in its operation on the action, to a dismissal with the consent of the defendant.”

(Wood

v.

Ramond,

42 Cal. 643-645.) It follows that where the act of the plaintiff gives the defendant the same relief which he seeks from the court the same result flows as if the relief asked were given by the court. While it is the duty of the clerk to enter the dismissal in his register the dismissal finally terminates the case when filed with the clerk whether or not he makes

[755]

the proper entries.