Boca & Loyalton R.R. v. Superior Court of Lassen Cty.

ANGELLOTTI, J.

Plaintiff seeks a writ of prohibition, restraining .the superior court of Lassen County from making any order in a certain action instituted in that court by the California Safe Deposit and Trust Company against plaintiff here other than an order of dismissal. The action referred to was one to obtain an injunction restraining plaintiff here from using a certain railroad-crossing over the road of the Sierra Valleys Railway Company in Plumas County, the facts in regard thereto being detailed in the opinion in

Boca and Loyalton R. R. Co.

v.

Superior Court of Lassen County,

S. F. No. 4651,

ante,

p. 147, [88 Pac. 715], this day filed. An alternative writ having been issued, the defendant made answer, and the matter has been submitted upon a demurrer to such answer, there being no material conflict as to the matters which are controlling here.

The main contention of plaintiff is that the injunction action has been dismissed by the plaintiff, and that the superior court is, therefore, without jurisdiction to make further orders therein.. The action was commenced on or about June 5, 1906. According to the allegations of the affidavit or complaint of plaintiff here, the plaintiff in that action, on June 30, 1906, no counterclaim having been made or affirmative relief sought by the defendant therein, sent its discontinuance in writing of said action to the clerk of said court, with its written request

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that he enter a dismissal of the same, all of the costs having been paid. No such entry was made by the clerk, he basing his refusal to so do upon a certain order made by the court restraining him from so doing. On July 18, 1906, plaintiff by its attorneys moved the superior court for a dismissal of said action, there having been no appearance on the part of defendant, and all costs having been paid. That motion had not been decided at the time of the institution of this proceeding.

According to the allegations of the answer, the only written request for or notice of dismissal sent to the clerk was one signed by the plaintiff in said action by its manager, and not signed by any attorney of record, said plaintiff up to that time having appeared in said action by attorney only. It further appears that the subsequent motion for dismissal made by the attorneys on July 18, 1906, has only been partially heard, the further hearing and determination thereof having been continued by the court until the determination of this proceeding.