Majority
p. 434THOMPSON v. SPRAY. No. 9496; January 14, 1885. 5 Pac. 506.
Headnote
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.APPEAL from the Superior Court of Amador County.
Eagan & Armstrong for appellant; A. Caminetti for respondent.
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
p. 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.