Simpson v. Superior Court

DORAN, J.

This petition for a writ of prohibition relates to the validity of dismissals filed in three actions in respondent superior court.

The record reveals that the three actions in question were assigned to department eleven of said superior court for trial; that the trial commenced on the afternoon of December 7th and continued throughout the following day, December 8th. At the conclusion of the court session on said last mentioned date, the trial was continued to Monday morning, December 11th. Plaintiff’s case had not been completed when, on the morning of December 11th, before the court convened, plaintiffs (petitioners herein) filed with the clerk of respondent court, dismissals without prejudice, together with a written tender of costs in connection therewith. The clerk of said court duly filed said dismissals and entered the same upon the.register of actions.

At the opening of the session of said court, defendants dis

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puted the validity and effect of said dismissals, and made a motion to set aside said dismissals. Over the objection of plaintiffs, who then and there contended that said court was without jurisdiction to entertain such motion, or to proceed further with any matters pertaining to said actions, the court heard argument after which an order was made and entered purporting to grant said motion and to set said dismissals aside.

The complaints in the three actions which were consolidated for trial, seek to enjoin defendants from violating certain race restrictions contained in the deeds to the property described in said actions.

Respondents take the position that, “This case involves the right of petitioners herein (plaintiffs below) to dismiss an injunction action (1) after stipulating that a motion to exclude all evidence was submitted, to be ruled upon before the case was closed and (2) despite the fact that the respective answers to the three complaints consolidated for trial requested affirmative relief as set forth in numerous affirmative defenses concluding with the prayer for such relief as might be equitable.”

With regard to plaintiff’s right to dismiss the action after the stipulation referred to respondents argue that, “At the time that petitioners (plaintiffs below) dismissed the three complaints involved herein, which had been consolidated for trial, there was pending before the trial court for determination and decision a motion that all evidence be excluded on various grounds including the ground that the complaint did not state facts sufficient to constitute a cause of action,” and “that the parties had stipulated that there should be a determination of the question of the legal sufficiency of the complaint by the trial judge which estopped plaintiff from exercising the usual right to dismiss in a proper case.” The record reveals that defendants, at the trial, objected to the introduction of any testimony on various grounds and in that connection appears the following: