McDonald v. California Timber Co. (1905) · DecisionDepot

McDonald v. California Timber Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 10, 1905 No. Civ. No. 123.Published

Before: Harrison

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Holding. The court held that a plaintiff has an absolute right to dismiss an action before trial, provided no counterclaim or request for affirmative relief has been filed, and this right is not superseded by a defendant's pending motion for a change of venue.

Issues

Whether a plaintiff may dismiss an action after the defendant has filed a motion for a change of venue but before that motion is heard.
Whether a motion for a change of venue deprives the court of jurisdiction to hear a plaintiff's motion to dismiss.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The defendant cannot, by making a demand for a change of the place of trial and giving notice thereof, deprive the plaintiff of the right thus given to dismiss the action”

“An application of the plaintiff to dismiss his action is ex parte, upon which the defendant is not entitled to be heard”

“After the judgment dismissing the action there was no cause to be tried, and, consequently, there was no place of trial to be changed.”

Synopsis

APPEAL from an order of the Superior Court of Santa Cruz County, denying a motion to change the place of trial. Lucas F. Smith, Judge.

The facts are stated in the opinion of the court.

HARRISON, P. J.

The plaintiff brought this action in the superior court of the county of Santa Cruz to recover damages from the defendant sustained by reason of a personal injury caused by the negligence of the defendant. September 12, 1903, the defendant filed and served a demurrer to the complaint, together with an affidavit of merits, and a

[166]

demand in writing that the cause be transferred for trial to the city and county of San Francisco, and on the same day gave notice to the plaintiff that on September 21, 1903, it would move the court to change the place of trial to the city and county of San Francisco upon the grounds, set forth in the affidavits annexed to said notice of motion, that the residence of the defendant is in that city and county by reason of that being the place designated in its articles • of incorporation as its principal place of business, and that the injuries sustained by the plaintiff were not received in the county of Santa Cruz. September 19, 1903, upon motion of the plaintiff, the court made an order dismissing the action, and judgment thereon was rendered on September 21st. Upon the hearing of the motion to change the place of trial the court denied the same upon the ground that the action had been dismissed before the motion was brought on for hearing. From this order the defendant has appealed.

Section 581 of the Code of Civil Procedure declares that an action may be dismissed: “1. By the plaintiff himself by written request to the clerk filed among the papers in the case at any time before trial upon payment of costs; provided a counterclaim has not been made or affirmative relief asked by the cross-complaint or answer of the defendant.” Under these provisions the only limitation upon the right of the plaintiff to dismiss his action is that the defendant has filed a counterclaim or asked for affirmative relief. The provision in the section that the plaintiff file a written request with the clerk is not mandatory or exclusive. The plaintiff could move for the dismissal in open court, and have its order made and entered with the same effect as though made by an entry in the clerk’s register.

(Richards

Bradley,

McDonald v. California Timber Co.

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Synopsis

HARRISON, P. J.

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