Hopkins v. Superior Court

HENSHAW, J.

The petitioner brought her action for divorce. The defendant answered by denials, without seeking affirmative relief. Thereafter petitioner filed a proper notice of dismissal of her action with the clerk of the court, and entered in a book kept for that purpose by the county clerk of the city and county of San Francisco a direction to the county clerk to enter an order of dismissal. The clerk refused to do so, basing his action upon an order of the superior court directing that all proceedings in relation to the dismissal be stayed, unless the plaintiff, within five days after

[553]

a copy of the order, pay to defendant the amount of his costs, and if plaintiff failed to make such payment, then the attempted dismissal of the action to be annulled and set aside, and the cause placed upon the calendar for trial. Plaintiff, before the court, objected to this order, refused compliance with it, and objected to the further order of the court staying the entry of the order and setting the action for trial. Plaintiff had paid the costs of entering the judgment, but the costs which the court insisted she should pay, as a prerequisite to her right to the entry of the order of dismissal, were the costs embraced in the cost bill filed by the defendant. Petitioner, therefore, has sued out her alternative writ for prohibition to restrain the court from proceeding further in the matter.

The only costs which a plaintiff is required to pay before dismissal of his action are the clerk’s costs for entering the order. Subdivision 1 of section 581 of the Code of Civil Procedure is so interpreted in

Todhunter

v.

Klemmer,

134 Cal. 60. In

Page

v.

Superior Court,

76 Cal. 372, it is said: “The direction to enter a judgment in the judgment-book is mandatory, because it imposes a public duty upon a ministerial officer. In a proper case,

if the clerk’s fee is paid,