Acock v. Halsey (1891) · DecisionDepot

Acock v. Halsey

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

California Supreme Court Jul 16, 1891 No. No. 14173Published

Before: Shakpstein

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Holding. The court held that a plaintiff cannot unilaterally dismiss an action after the defendant has filed an answer seeking affirmative relief, even if that answer was filed after the time for answering had expired but before a default was entered.

Issues

Whether a plaintiff may unilaterally dismiss an action after a defendant has filed an answer seeking affirmative relief.
Whether an answer filed after the time for answering has expired, but before default, is a nullity.
Whether the presence of counsel at a hearing constitutes a waiver of written notice of a motion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“If the judgment of dismissal was void, the court, on having its attention called to it, could summarily or otherwise vacate it.”

“We think the defendants, by their answer, clearly seek affirmative relief.”

“It was, perhaps, not strictly regular to file the answer after the time for answering had expired, without leave of the court; but as the default of the defendant had not been entered, we think the filing was not a nullity.”

Synopsis

Appeal from, an order of the Superior Court of Sacramento County setting aside a judgment.

The facts are stated in the opinion of the court.

Shakpstein, J. This appeal is by the plaintiff from an order setting aside a judgment of dismissal of the above-entitled action on motion of defendants. The record before us discloses the following facts: The action, which is for the recovery of the possession of personal property, was commenced on-the twenty-second day of August, 1889, at which time the plaintiff gave an under[218]taking for the delivery to him of the property described in the complaint, and thereupon said property was upon proper process taken by the sheriff from the defendants by said plaintiff. On the fourth day of September, 1889, and after the defendants had given an undertaking for the redelivery of said property to them, the plaintiff, without redelivering said property to them, caused to be made by the clerk of the court in which said action was pending the following entry in the register of actions:—■

“ Dismissed by order of plaintiff’s attorneys this fourth day of September, 1889.

“Attest: Wm. B. Hamilton, Clerk.”

On the tenth day of September, 1889, defendants filed an answer to said complaint, and at the same time a notice of motion to have said order of dismissal set aside and to reinstate said cause upon the records of the court, and for permission to file an answer. On the twenty-first day of September, 1889, said motion was heard by the court, and an order, of which the following is a copy, made: —

“ Motion to set aside dismissal.

“T. L. Acock, Plaintiff, v. Nellie T. Halsey et ah, Defendants.

“ Matter coming on for hearing, Johnson & Johnson appearing for plaintiff, and A. L. Hart for defendants. Matter argued and submitted, and motion denied.”

Thereafter, on the twenty-fifth day of April, 1890, against the objection of plaintiff, said cause was, at the instance of defendants, set for trial on the 12th of June, 1890. Thereupon, on said 25th of April, plaintiff, without leave of the court, or notice to opposing counsel, procured to be entered by the clerk of said court a judgment of dismissal. On the twelfth day of June, 1890, the day on which said action had been set for trial, said judgment was first brought to the attention of defendants’ counsel and the court. Whereupon, both parties being present [219]

Acock v. Halsey

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