Riley v. Dunbar

SCHAUER, P. J.

Plaintiffs, as unit holders of a trust, brought an action “on behalf of themselves and all other beneficiaries of the Bell View Oil Syndicate” against the trustees, seeking an accounting and the recovery of money allegedly improperly expended. Issues of fact were joined, trial was entered upon and evidence received. During an overnight recess the plaintiffs filed with the clerk a direction to enter dismissal of the action. After the recess and such attempted dismissal trial was resumed despite the absence of counsel for plaintiffs, defendants’ motion for vacation of the

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dismissal ivas granted, defendants rested and judgment on the merits was rendered in their favor.

Plaintiffs’ 'Notice of Appeal declares that it is taken from “that certain ex parte order made after final judgment herein, to-wit

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: the minute order . . . striking ‘the purported dismissal of the action; ’ and . . . also, from the purported judgment entered herein on or about Sept. 29, 1941.” It does not appear that the order attempted to be appealed from is in fact an order “made after final judgment”; and hence it is not appealable. (Code Civ. Proc, § 963.) However, since it precedes the final judgment which is" appealed from, it could be reviewed, upon a proper record, on the appeal from the judgment. (Code Civ. Proc., § 956.)

As to the merits of the appeal, plaintiffs make no attack on the judgment other than the claim that it is void on the theory that the action had been effectually dismissed, and thereby terminated, prior to its entry. They rely on an asserted absolute right of a plaintiff to dismiss his action, pursuant to the provisions of section 581 of the Code of Civil Procedure, before submission, where no affirmative relief is sought by a defendant, and cite the cases of

Rogers

v.

Transamerica Corp.,

(1935) 6 Cal.App.2d 340 [44 P.2d 635];

Provencher

v.