Kershaw v. Hogan

PULLEN, P. J.

These are actions brought by the same plaintiff to quiet title to identical parcels of real property, but against different defendants. The two cases were by stipulation tried together.

During the progress of the trial and before the submission of the cause for decision, the court, upon motion of plaintiff, ordered each case dismissed without prejudice, and it is from these orders of dismissal that defendants appeal.

Respondent contends that he is basing his right to dismiss upon subdivision 4 of section 581 of the Code of Civil Procedure, which provides that an action may be dismissed by the court when upon the trial and before final submission of the cause the plaintiff abandons the action.

It is obvious that plaintiff cannot prevail under the provisions of that subdivision, for he seeks to his own advantage and for his own shortcoming to move his own dismissal. It is also plain that he could not by so doing set at naught all of the conditions set forth in subdivison 1 of section 581 of the Code of Civil Procedure, which limits the right of a plaintiff to dismiss before trial when no affirmative relief is sought by the answer of appellant, and here an examination of the pleadings shows that defendants, in their respective answers, did set forth affirmative relief.

(Islais etc. Water Co.

v.

Allen,

132 Cal. 432 [64 Pac. 713].)

It therefore appears that the trial court erred in granting the motions to dismiss and the judgments are reversed and the causes remanded for further proceedings.

Thompson (R. L.), J., and Plummer, J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on November 17, 1932.