Goldtree v. Spreckels

Plaintiff’s complaint contains three alleged causes of action. In the first two plaintiff prays that defendant be restrained from obtaining a deed, following the sale of certain lots situated in San Diego, for non-payment of interest on certain bonds issued to the contractor for street work, under the Street Improvement Act. The third cause of action is to quiet plaintiff’s title against any interest or claim of defendant to the property. The amended complaint was filed December 22, 1899. A general demurrer to each cause of action was interposed on December 26, 1899, and on February 24, 1900, the demurrer was. argued and submitted to the court for decision, was sustained as to the first two causes of actiop and overruled as to the third, and, on application of defendant, leave was granted him to answer the third cause of action. No leave was asked by plaintiff, and no order was made allowing plaintiff to amend the complaint as to the first two causes of action. On March 6; 1900, defendant filed his answer to the third cause of action, but sought no affirmative relief. The cause came on for trial May 16, 1900, “on the issues of fact joined by the answer of defendant to the third cause of action,” and plaintiff’s motion for a continuance was denied. Thereupon plaintiff’s counsel announced “in open court that the plaintiff will take a dismissal of this action,” to which defendant’s attorneys objected, and the court ruled that “the plaintiff is not entitled to dismiss the action as to the first two alleged causes of action stated in the amended complaint, for the reason that a trial has been heretofore had by the court, by sustaining the demurrer to each of said two alleged causes of action, on the ground that neither of them stated facts sufficient to constitute a cause of action.” After the court had announced its decision, and on the same day, plaintiff’s attorneys filed a written request to the clerk to dismiss the action, and the clerk Immediately entered an order of dismissal. Plaintiff’s attorneys the same day came into court and called its attention to the entry of the clerk, and again moved a dismissal of the action. Whereupon the court ordered that the entry of dismissal by the clerk be set aside and canceled, on the sole ground that the clerk had no authority to make the entry. Plaintiff’s counsel then moved to dismiss the third cause of action, without prejudice to the right of plaintiff concerning the proceedings theretofore had (referring

Section 581 of the Code of Civil Procedure provides as follows: “An action may be dismissed, or a judgment of non-suit entered, in the following eases: 1. By the plaintiff himself, by written request to the clerk, filed among the papers in the case, at any time before trial, upon payment of costs; provided a counterclaim has not been made, or affirmative relief sought by the cross-complaint or answer of the defendant.” Section 148 of the Practice Act was substantially the same as section 581 of the Code of Civil Procedure, except by statute of March 9, 1897, (Stats. 1897, p. 98,) the words in italics were added to the section. In Hancock Ditch Co. v. Bradford, 13 Cal. 637 , the parties had gone to trial and the testimony for plaintiff and defendants had closed, but we infer that the case had not yet been submitted. There was no counterclaim made by defendants. It was held that, under section 148 of the Practice Act, “by ‘trial’ here is meant the determination or finding in the case. ... At common law, the right of the plaintiff was to take a nonsuit at any time before the jury retired, and we do not construe the statute as altering the rule.” The court ordered the nonsuit to be entered. In Brown v. Harter, 18 Cal. 76 , the court said, in explaining some possible obscurity in the opinion in Hancock Ditch Co. v. Bradford, 13 Cal. 637 : “The Practice Act does not give an arbitrary right to become nonsuit after the case has been finally submitted to the jury, though it exists at any time before such final submission and their retirement.” The case had been submitted to the jury, and they had retired to eon

The Code of Civil Procedure declares that issues arise on the pleadings, and are of two kinds,—namely, of law and of fact. (Code Civ. Proe., see. 588.) “An issue of law must be tried by the court, unless it is referred by consent.” (Code Civ. Proe., sec. 591.)

In Tregambo v. Comanche etc. Mining Co., 57 Cal. 501 , the court said: “A trial is the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue. When the court hears and determines any issue of fact or of law, for the purpose of determining the rights of the parties, it may be considered a trial.” In that case the issue presented was on the application to set aside the- default entered • against the defendant and allow it to answer, and this motion was made before the trial on the merits. The point decided was that it was a “trial” within the meaning of the word as used in section 650 of the Code of Civil Procedure.

So it was held in Finn v. Spagnoli, 67 Cal. 330 ,—that the hearing and disposition of a motion for a new trial is a trial.

A statute of the United States providing for the removal of causes required the filing of the petition to be “at or before the term at which said cause could be first tried, and before the trial thereof.” What was meant by the term “trial,” used in this statute, was decided in Alley v. Nott, 111 U. S. 472 , opinion by Chief Justice Waite. The suit was begun in the supreme court of New York. Demurrers to the complaint were interposed on the ground “that it did not state facts sufficient to constitute a cause of action.” The issues of law

In Beaumont v. Herrick, 24 Ohio St. 446 , the question arose under section 372 of the Ohio Code of Civil Procedure, which reads as follows: “An action may be dismissed without prejudice to a future action,—1. By the plaintiff, before the final submission of the ease to the jury or to the court, where the trial is by the court.” The demurrer was for want of sufficient facts and the court said: “The submission of the ease on the demurrer was a final submission of the case within the meaning of section 372 of the code, unless leave was obtained to reply or amend. Without additional pleading, the legal consequence of the overruling of the demurrer was a judgment of dismissal.”

Under a code provision the same as that in the Ohio code the question came before the Nebraska supreme court in State v. Scott, 22 Neb. 628 . A general demurrer had been argued and submitted in the lower court on July 6, 1887, and a decision agreed upon, the docket entry being “July 6, writ denied.” The court thereupon adjourned until September 20, 1887.- On September 2, 1887, the relators attempted to dismiss the action by filing a voluntary dismissal. The attorney-general objected and asked that the attempt to dismiss be disregarded, and that judgment be rendered. The court cited Beaumont v. Herrick, 24 Ohio St. 446 , stating that the Nebraska and Ohio codes were identical, and quoted the paragraph found above. Other cases were also cited to the same effect, the court continuing: “No case has been cited where under a statute like ours a plaintiff as a matter of right can dismiss his action after it has been submitted to the court. If he could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation. The statute, therefore, limits the right of the plaintiff to dismiss to the final submission of the case. In the ease under consideration the relators had set forth all the facts upon which they relied for the writ, and the case was finally submitted to the court, which determined that the

The clerk had no authority, therefore, to enter the dismissal, and being void the court rightly set it aside.

2. But appellant insists that the demurrer was improperly sustained, and, as he appeals from the judgment in favor of defendant, the question of the sufficiency of the complaint is before us.

We are unable to discover any difference between the facts on which the right of action depends as alleged in this case and the facts alleged in Blochman v. Spreckels, ante, p. 662, this day decided. The lots here in question front on Orange Avenue, as in the other case, and the improvement of the street is the same and under the same ordinance and resolution of intention as in Blochman v. Spreckels. Respondent does not attack the sufficiency of the complaint in his brief; his argument is addressed exclusively to the regularity of the proceedings which is contested by the issues raised by the pleadings. The demurrer admits that the clause in the ordinance which, in the Blochman case, was held to render the assessment void is also found in the ordinance which in part constituted the specifications in this case. The two cases must stand or fall together.

Bach of the first two counts of the complaint stated a cause of action, and the demurrer should have been overruled.

The order canceling the entry of dismissal by the clerk should be affirmed, and the judgment in favor of defendant on the demurrer should be reversed:

Haynes, C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the order canceling the entry of dismissal by the clerk is affirmed and the judgment in favor of defendant on the demurrer is reversed.

McFarland, J., Temple, J., Henshaw, J.

Hearing in Bank denied. .

Beatty, C. J., dissented from the order denying a hearing in Bank.