James v. Center

By the Court: . The judgment of dismissal in form, entered by the Clerk, was properly entered, inasmuch as no counter-claim had been made. (C. C. P. 581.) The matters set forth in the cross-bills, so called, did not constitute a counter-claim, because not arising out of the transaction set forth in the complaint, and not connected with the subject of the action. (C. C. P. sec. 438, subd. 1.) The order appealed from was an order made after judgment, and therefore the subject of appeal. The order setting aside the judgment was erroneous, because the plaintiff had the right to dismiss the action in the absence of a counter-claim. , Order reversed.