MacDermot v. Grant

California Supreme Court Oct 3, 1919 No. S. F. No. 8420.Published

Before: Lennon

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Holding. The court held that a purported dismissal of an action by some of the plaintiffs after the case had been submitted for decision was ineffective under the Code of Civil Procedure, and the trial court did not abuse its discretion in entering judgment for all plaintiffs.

Issues

Whether a dismissal attempted by plaintiffs after the case was submitted for decision is valid under the Code of Civil Procedure.
Whether a written consent to dismiss is effective if not signed by the attorney of record.
Whether the trial court abused its discretion by entering judgment for all plaintiffs despite an informal attempt at dismissal by some of them.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The purported dismissal cannot be given effect under any of the provisions of the code which expressly authorize a dismissal.”

“It is well settled that the written consent referred to in the code provision now under consideration is wholly ineffective unless it is signed by the attorney of record of the consenting party.”

“Under these circumstances it cannot be held that the court abused whatever discretion it may have had in the matter in giving judgment for the whole sum in favor of all of the plaintiffs.”

Synopsis

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. C. N. Andrews, Judge Presiding. Affirmed.

The facts are stated in the opinion of the court.

LENNON, J.

This is an appeal from a judgment for the plaintiffs following a trial without a jury in an action on a promissory note owned in common by the plaintiffs Louis MacDermot, Flora Proctor, Mary Crawford, and Alfred MaeDermot. The three plaintiffs last named attempted to dismiss the action, so far as they were concerned, after the findings and judgment had been signed but before they had been filed. It is the contention of appellant that the court erred in entering judgment in favor of all of the plaintiffs. The judgment was affirmed by the first division of the district court of appeal for the first appellate district, Mr. Presiding Justice Waste writing the opinion. The affirmance was correct.

[1]

The purported dismissal cannot be given effect under any of the provisions of the code which expressly authorize a dismissal. (Code Civ. Proe., secs. 581, 581a, 581b.) The circumstances here presented clearly exclude the application of any of the provisions of the code sections in question other than those contained in- subdivisions 1, 2, and 4 of section 581 of the Code of Civil Procedure.

[334]

Subdivision 1 authorizes a dismissal by the plaintiff at any time before the trial. The purported dismissal filed herein was not filed before trial. It is true that in construing a similar' section of the Practice Act an early decision defined “trial” as meaning the determination or finding in the case.

(Hancock, Ditch Co.

Bradford,

13 Cal. 637.)

[2]

It is evident, however, from the concluding portion of the opinion in that case that the court construed the words “before trial” as meaning “before submission,” and this is the sense in which they have been construed in subsequent cases.

(Heinlin

Castro,

22 Cal. 100, 102;

MacDermot v. Grant

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Synopsis

LENNON, J.

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