McColgan v. Jones, Hubbard & Donnell, Inc.

SEAWELL, J.

This is a motion to dismiss an appeal on the ground that it was taken too late. The appeal is from an order of the court granting defendants’ motion for a non-suit. Said order was entered in the clerk’s minutes.

The question involved is whether under section 581, Code of Civil Procedure, an appeal may be taken from an order of nonsuit entered in the clerk’s minutes and noted in his register of actions, or whether a judgment of dismissal must thereafter be entered on said order and the appeal taken from said judgment. If the order is appealable, the appeal herein was taken too late, and must be dismissed. If the order was inoperative as a final judgment, then the appeal is premature, since no judgment has been entered on said order. In such event, the appeal should be dismissed as premature, without prejudice to the right of the parties to take further steps in the trial court and to appeal from any judgment thereafter entered.

It would extend this opinion unduly to quote section 581, Code of Civil Procedure, in full. The section commences as follows: “An action may be dismissed, or a judgment of

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nonsuit entered, in the following eases ...” The instances referred to by the code, briefly, are: (1) By the plaintiff before trial. (2) By either party upon the written consent of the other. (3) By the court when either party fails to appear at the trial and the other party asks for “the dismissal”. (4) By the court when the plaintiff abandons the case upon the trial. (5) “By the court upon motion of the defendant when upon the trial the plaintiff fails to prove a sufficient case. ’ ’

After listing the cases in which “an action may be dismissed, or a judgment of nonsuit entered”, the section concludes as follows:

“The dismissals mentioned in subdivisions one and two hereof, when written consent of the attorney of record of the party requesting the dismissal is filed, must be made by entry in the clerk’s register or in the justice’s docket, as the case may be, and are effective for all purposes when so entered.

“The dismissals mentioned in subdivisions one and two hereof, when written consent of the attorney of record of such party is not filed, and the dismissals mentioned in subdivisions three, four and five of this section, must be made by order of the court entered upon the minutes thereof, or in the justice’s docket, as the case may be, and are effective for all purposes when so entered; but the clerk in superior and municipal courts, must note such orders in his register of actions in the case. ’ ’