Thompson v. Spraig (1885) · DecisionDepot

Thompson v. Spraig

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

California Supreme Court Jan 14, 1885 No. No. 9,496Published

Before: Ross

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Holding. The court held that because the cross-complaint was stricken, leaving only matters of defense, the plaintiffs were entitled to dismiss the action before trial, rendering the subsequent trial void.

Issues

Whether the plaintiffs had the right to dismiss the action after the cross-complaint was stricken from the defendant's answer.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“The plaintiffs were, therefore, at liberty to dismiss the action at any time before trial, upon payment of costs.”

“The purported trial of the 5th of November, 1883, was therefore of an action which had been previously dismissed.”

Synopsis

Practice—Cross-Complaint—Dismissal of Action.—When a cross-complaint lias been stricken from an answer, leaving therein matters of defense only, the plaintiff may dismiss the case at any time before the trial, on payment of. costs.

Ross, J. The cross-complaint having been stricken from the answer of the defendant, the latter pleading was left with matters of defense only. The plaintiffs were, therefore, at liberty to dismiss the action at any time before trial, upon payment of costs. (Code of Civil Procedure, § 581.) This they did—the dismissal having been entered by the clerk. The purported trial of the 5th of November, 1883, was therefore of an action which had been previously dismissed.

Order reversed and cause remanded, with directions to the court below to set aside the judgment.

McKee, J., Myrick, J., McKinstry, J., Morrison, C. J., and Sharpstein, J., concurred.

Thompson v. Spraig

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