San Jose Ranch Co. v. San Jose Land & Water Co.

TEMPLE, J.

—The plaintiffs claim certain water rights by appropriation. They charge that the defendant has wrongfully diverted water to which they are entitled, greatly to their damage, and threatens to continue to do so. They ask for an injunction during the pendency of the action, and that it he made perpetual, and for five thousand dollars damages.

An answer was put in which took issue with the allegations of the complaint and asserted adverse rights in defendant.

Upon these issues the action was tried without a jury, evidence put in on both sides, and the case argued by counsel and submitted for decision. Some seven months or more after the •submission the court made an order dismissing the case.

The judgment of dismissal recites that the case was finally ■submitted to the court for its decision more than six months before, and that the court, after due consideration, has determined that the defendant is entitled to a nonsuit, and that defendant has failed to demand a nonsuit for more than six months; it was therefore ordered and adjudged that a nonsuit he granted, “and that the action he dismissed.”

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It is contended that this action was warranted by subdivision 6, section 581, of the Code of Civil Procedure, which reads:. “By the court, when after verdict or final submission the party entitled to judgment neglects to demand and have the same-entered for more than siz months.”

The ready answer to this is, that no one was entitled to have-the judgment entered until it had been rendered. If findings were not waived, it was incumbent upon the court to make findings, and upon them it was the duty.of the clerk to enter judgment at once. (Code Civ. Proc., sec. 664.)

The defendant who fails to demand a nonsuit is in no default. It is his privilege and right, although he can obtain a' nonsuit, to demand instead a regular judgment on the merits. In this case both parties demanded a judgment on the merits by a final submission.

It is said that plaintiff is not injured, although the action of the court was erroneous. The court found that judgment must, be for the defendant, and a dismissal, it is contended, is no-worse for the plaintiffs than an adverse judgment. In fact, respondent argues, it is better, for it leaves them at liberty to-sue again, and is hot an estoppel. But the one purpose of plaintiffs in bringing the suit was to have their rights determined. It would not advance their interests to have the suit-disposed of without determining the disputed claims of the parties. They certainly cannot appeal as easily, or as conveniently present their view of the controversy, as they might have done if findings had been filed. It is said that plaintiffs may now have the judgment of dismissal set aside if, upon appeal, it should be found that there was any evidence to support their contentions. This assumes that upon an appeal from the order dismissing the case this court could consider the ease as though a judgment of nonsuit had been granted. I do not see how this could be on an appeal from an order dismissing an action because of neglect in entering the judgment. The dismissal is because of neglect, and whether the neglect was such as to warrant and justify the dismissal would be the subject of review on such appeal. Or, perhaps, whether it was a case for dismissal for neglect.