Thompson v. Spray (1885) · DecisionDepot

Thompson v. Spray

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. 9496Published

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 and judgment void.

Issues

Whether the plaintiffs had the right to dismiss the action after their cross-complaint was stricken.
Whether a trial held after a valid dismissal is legally valid.

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

Dismissal by Plaintiff—When Allowed.—Where the Answer in an Action pleads matter of defense only, the plaintiff is at liberty to dismiss the action at any time before trial, upon 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 Civ. Proc., sec. 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 re[435]versed, and cause remanded, with directions to the court below to set aside the judgment.

We concur: McKee, J.; Myrick, J.; McKinstry, J.; Morrison, C. J.; Sharpstein, J.

Thompson v. Spray

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