Sullivan v. Compton

PEEK, J.

This is an appeal by certain defendants from an order denying their motion to strike plaintiffs’ dismissal, and for judgment on the pleadings.

The original action was one to quiet title to eleven mining claims located in Sierra County, known as the “Colombo-Bullion Mine. ’ ’ The complaint was in the usual form, and a

lis pendens

was duly filed. A general demurrer to the complaint was overruled, and by defendants’ answer issues were joined except that defendants alleged a claim of interest in the property, and in support thereof pleaded in full certain written instruments and a deed alleged to show transfer of title from plaintiffs to defendants. The pendency of another action was alleged as a special defense. No cross-complaint or counterclaim was set forth in the answer. Defendants’ answer concluded with the prayer “wherefore, said defendants pray that plaintiffs take nothing by said complaint and that they have judgment for their costs herein.”

In his opening statement, plaintiffs’ counsel indicated that they intended to attack the validity of the instruments under which defendants claimed title on the ground of nondelivery and the failure of defendants to perform certain conditions therein set forth. Defendants then moved for a judgment on the pleadings upon the ground that plaintiffs had not filed an affidavit, and served on them a copy thereof denying the execution and genuineness of the written instruments set forth in defendants’ answer, as provided in section 448 of the Code of Civil Procedure. During a short recess to enable plaintiffs to examine the authorities cited by defendants in support of their motion, and before the court had disposed of the same, plaintiffs filed with the clerk of the court a dismissal of their action without prejudice. A short time later defendants, by a written motion moved to strike plaintiffs’ dismissal from the record, and for judgment on the pleadings. The court, after submission thereof, made its order denying said motion, and it is from such order that defendants now appeal.

Defendants contend that it was error to deny their motion

[502]

for judgment on the pleadings in that plaintiffs by their failure to file an affidavit in accordance with the provisions of section 448 of the Code of Civil Procedure, thereby admitted the genuineness of the written instruments set forth in defendants’ answer. They have alleged further error by the trial court in the denial of their motion to strike plaintiffs’ dismissal from the records and files in the case.