Biggs v. Biggs

DRAPEAU, J.—

To plaintiff’s second amended complaint for divorce defendant answered, and prayed for affirmative relief.

February 11, 1948, one of plaintiff’s attorneys Sled with the clerk an order for dismissal of the action, with prejudice. This order was entered by the clerk.

October 7, 1949, plaintiff changed attorneys, and moved to set aside the dismissal. Notice of motion was given defendant’s counsel. Affidavit was made by plaintiff that the dismissal was “inadvertently offered for filing,” and was, and is, a nullity because affirmative relief was prayed for in the answer.

The motion was denied, and plaintiff appeals.

The case has been submitted to this court without argument and upon plaintiff’s opening brief only. Defendant made no objection when the case was dismissed, no appearance when the motion to set aside the dismissal was made, and has filed no brief and made no appearance in this court.

The entry of an order for dismissal in the clerk’s register has the effect of a final judgment.

(Hopkins

v.

Superior Court,

136 Cal. 552 [69 P. 299];

King

v.

Superior Court,

12 Cal.App.2d 501 [56 P.2d 268];

Fisher

v.

Eckert,

94 Cal.App.2d 890 [212 P.2d 64].)

A judgment can be nullified by the court which rendered it only: (1) On motion for a new trial; (2) by a motion under the provisions of section 473 of the Code of Civil Procedure; (3) by motion therefor at any time where the judgment is void on its face; (4) by an independent suit in equity.

(Fisch & Co.

v.

Superior Court,

6 Cal.App.2d 21 [43 P.2d 855].)

No appeal was taken from the order of dismissal. No motion for a new trial was made, nor for relief under the provisions of section 473 of the Code of Civil Procedure. And the time for any such legal proceeding has long gone by.