James v. Center (1878) · DecisionDepot

James v. Center

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

California Supreme Court Jul 1, 1878 No. No. 5615Published

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Holding. The court held that the plaintiff had an absolute right to dismiss the action because the defendant's cross-bills did not constitute a valid counter-claim under the Code of Civil Procedure. Consequently, the trial court erred in setting aside the clerk's entry of dismissal.

Issues

Whether the defendant's cross-bills constituted a counter-claim under C.C.P. sec. 438.
Whether the plaintiff had the right to dismiss the action in the absence of a counter-claim.

Disposition. Reversed

Quotations verified verbatim against the opinion

“The order setting aside the judgment was erroneous, because the plaintiff had the right to dismiss the action in the absence of a counter-claim.”

“The matters set forth in the cross-bills, so called, did not constitute a counter-claim, because not arising out of the transaction set forth in the complaint”

Synopsis

Dismissal—Counter-claim.— A judgment of dismissal may be entered by the Cleric of a Court, notwithstanding a cross-complaint has been filed, if the cross-complaint does not set up a counter-claim.

■ Counter-claim.—A matter that does 'not arise out of the transaction set forth in the complaint, and which is not connected with the subject of the action, does not constitute a counter-claim.

Appealable Order.—An order vacating a judgment of dismissal is an appealable order.

By the Court: . The judgment of dismissal in form, entered by the Clerk, was properly entered, inasmuch as no counter-claim had been made. (C. C. P. 581.)

The matters set forth in the cross-bills, so called, did not constitute a counter-claim, because not arising out of the transaction set forth in the complaint, and not connected with the subject of the action. (C. C. P. sec. 438, subd. 1.)

The order appealed from was an order made after judgment, and therefore the subject of appeal.

The order setting aside the judgment was erroneous, because the plaintiff had the right to dismiss the action in the absence of a counter-claim.

, Order reversed.

James v. Center

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