Fleishbein v. Western Auto Supply Agency

CRAIL, P. J. The sole question necessary for a decision on this appeal is whether the plaintiff has successfully pleaded an estoppel. If he has, the judgment should be reversed. If he has not it should be affirmed.

The plaintiff originally brought his action in the superior court of the state of California. That action was removed to the federal court. After the period of the statute of limitations had fully run, he dismissed the action without prejudice.

The plaintiff thereafter commenced a new action in the superior court and, because it otherwise would have appeared upon the face of the complaint that the action was barred by the statute of limitations, undertook in his complaint to allege an equitable estoppel. In this regard the complaint alleges that when the former action came on for trial counsel for the defendant stipulated with counsel for'plaintiff that the said cause should be dismissed without prejudice; that the stipulation is attached to the complaint and made a part thereof. (The so-called stipulation which supersedes the pleader’s use of the word “stipulated” turns out to be the minutes of the court.) It reads as follows: “This cause coming before the court for trial, attorney for plaintiff moves for dismissal as to the defendant without prejudice, and, attorney for defendant stating that he has no objection, it is so ordered by the Court.” The complaint continues (boiled down): “That by consenting to the dismissal without prejudice of the said cause of action as to the defendant, the defendant represented to the plaintiff that plaintiff could sue again; that plaintiff relied upon this consent to the dismissal and was led to believe that the defendant would not set up the statute of limitations as a bar to another action arising out of these facts brought by the plaintiff against the defendant; that by consenting to the said dismissal without prejudice the defendant waived the defense of the statute of limitations and is now estopped from setting up the same.” The defendant presented a general demurrer against this [427]complaint. The demurrer was sustained without leave to amend, and judgment was entered accordingly. The appeal is from this judgment. The plaintiff makes no claim that he could have done better if he had been given leave to amend.

The phrase “without prejudice” is often used but is seldom defined. Dismissals of actions without prejudice ordinarily indicate that such judgments of dismissal affect no right or remedy of the parties and that there has been no decision of the case upon the merits. (69 Cor. Jur. 1318, notes 62 and 63.) The only adjudication by a judgment of dismissal “without prejudice” is that nothing is adjudged and that the parties are as free to litigate the issue as though the action had not been commenced. (Harrison v. Remington Paper Co., 140 Fed. 385 [5 Ann. Cas. 314, 3 L. R. A. (N. S.) 954]; 9 R. C. L. 214.) Such a dismissal cannot ordinarily be construed as debarring the defendant of any defense upon the merits of the case to which he is entitled by law. (17 R. C. L. 871, note 13; Nevitt v. Bacon, 32 Miss. 212 [66 Am. Dec. 609].) The defense of the statute of limitations is one upon the merits. (Foley Co. v. State, 119 Cal. App. 300 [6 Pac. (2d) 283] ; People v. Honey Lake Talley Irr. Dist., 77 Cal. App. 367 [246 Pac. 819].)