Lyle v. Anglo-California National Bank

WARD, J. The notice of appeal herein sets forth “that the above-named alleged Incompetent, Annie Galloway Lyle, does hereby appeal from the Orders and each of them, made and entered by the above-entitled court, on the 11th day of December, 1945, appointing guardians of her Person and Estate and directing Issuance of Letters of Guardianship in said matter.” The notice refers to the■ appointment of Charlotte Cunningham as guardian of the person of “Annie Galloway Lyle, an incompetent person, ’ ’ and the Anglo-California National Bank of San Francisco as the guardian of the incompetent’s estate. Appellant refers to Annie Galloway Lyle as Dr. Lyle. In the interest of brevity appellant’s designation will be adopted.

On November 7, 1945, there was filed by H. L. McAllister, as a friend, a verified petition seeking the appointment of a guardian over the person and estate of Dr. Lyle. Also, on the same date, a citation was issued directing Dr. Lyle to appear on November 16, 1945, to show cause why H. L. McAllister should not be appointed guardian of the person and estate of the alleged incompetent. On November 16, 1945, the date set for the hearing of the McAllister petition, William D. Galloway, a resident of the State of Pennsylvania, and a cousin of Dr. Lyle, filed an unverified petition praying that the Anglo-California National Bank of San Francisco be appointed guardian of the estate, and that a suitable person be appointed guardian of the person of Dr. Lyle. The Galloway petition was not treated as a separate proceeding but was filed with the McAllister petition and given the same court number, namely, Probate No. 101214.

On November 30, the attorney for petitioner McAllister, filed with the county clerk an authorization, dated November 26, 1945, to dismiss the McAllister petition. The general rule, as stated in Code of Civil Procedure, section 581, is that a plaintiff has a right to dismiss an action before the submission of the case unless affirmative relief is prayed for [155]in some appropriate form of pleading. Most of the California cases assume that a pleading seeking affirmative. relief is in the form of a cross-complaint, hut it is not the generally designated name of the pleading which controls—the controlling factor is whether affirmative relief is requested. In Rodgers v. Parker, 136 Cal. 313 [68 P. 975], an answer to a cross-complaint prayed for affirmative relief; it was held that the cross-complaint could not be dismissed without the consent of the parties who had prayed for affirmative relief in the answer. Similarly, in Aten v. Aten, 69 Cal.App.2d 589 [159 P.2d 672], an action to cancel a property settlement agreement for declaratory relief, an answer, praying that plaintiff take nothing and averring that plaintiff had no title or interest in the property other than as provided in a certain contract was a sufficient request for affirmative relief to preclude plaintiff from dismissing the action as a matter of right. The delivery of a dismissal to the clerk of the court does not authorize the clerk to enter a dismissal of a petition or complaint if there is some pleading on file in opposition thereto which requests affirmative relief. If the attorney’s authorization to dismiss, and the record of the pleadings, leave in doubt whether or not affirmative relief is sought, the entry of the authorization to dismiss is, in fact and in law, subject to judicial determination. In the present ease the “authorization” was not entered by the clerk but referred to the trial judge and the matter assigned to a probate department. In the absence of a desire by the attorney for McAllister to proceed, the court ordered the petition of H. L. McAllister “Off Calendar” and made no reference to the action numbered 101,214. By this procedure the probate court retained jurisdiction not only of the person, which is not controverted, but of the estate of the incompetent.