Acock v. Halsey

Shakpstein, J. This appeal is by the plaintiff from an order setting aside a judgment of dismissal of the above-entitled action on motion of defendants. The record before us discloses the following facts: The action, which is for the recovery of the possession of personal property, was commenced on-the twenty-second day of August, 1889, at which time the plaintiff gave an under [218] taking for the delivery to him of the property described in the complaint, and thereupon said property was upon proper process taken by the sheriff from the defendants by said plaintiff. On the fourth day of September, 1889, and after the defendants had given an undertaking for the redelivery of said property to them, the plaintiff, without redelivering said property to them, caused to be made by the clerk of the court in which said action was pending the following entry in the register of actions:—■ “ Dismissed by order of plaintiff’s attorneys this fourth day of September, 1889. “Attest: Wm. B. Hamilton, Clerk.” On the tenth day of September, 1889, defendants filed an answer to said complaint, and at the same time a notice of motion to have said order of dismissal set aside and to reinstate said cause upon the records of the court, and for permission to file an answer. On the twenty-first day of September, 1889, said motion was heard by the court, and an order, of which the following is a copy, made: — “ Motion to set aside dismissal. “T. L. Acock, Plaintiff, v. Nellie T. Halsey et ah, Defendants. “ Matter coming on for hearing, Johnson & Johnson appearing for plaintiff, and A. L. Hart for defendants. Matter argued and submitted, and motion denied.” Thereafter, on the twenty-fifth day of April, 1890, against the objection of plaintiff, said cause was, at the instance of defendants, set for trial on the 12th of June, 1890. Thereupon, on said 25th of April, plaintiff, without leave of the court, or notice to opposing counsel, procured to be entered by the clerk of said court a judgment of dismissal. On the twelfth day of June, 1890, the day on which said action had been set for trial, said judgment was first brought to the attention of defendants’ counsel and the court. Whereupon, both parties being present [219] by counsel, defendants’ counsel, without notice, moved the court to set aside and vacate said judgment as being void, and as having been entered by the clerk without authority of law, after the filing of defendants’ answer; and on the twenty-ninth day of August, 1890, the court made an order vacating and setting aside said judgment, to which said order plaintiff then and there excepted, and from which this appeal is taken. If the judgment of dismissal was void, the court, on having its attention called to it, could summarily or otherwise vacate it. “An action may be dismissed, or a judgment of nonsuit entered, .... by the plaintiff himself, at any time before trial, upon payments of costs; provided, a counterclaim has not been made, or affirmative relief sought by the cross-complaint of defendant.” It appears by the record that before and at the time of the entry of the judgment of dismissal in this case, there was an answer of the defendants on file, in which the defendants, among other things, prayed “ for the return and redelivery of said property to defendants, if a delivery thereof can be had; or in case a delivery thereof cannot be had, then for the value of said property in the sum of $500; for damages in the sum of $150; for defendants’ costs in this action.” We think the defendants, by their answer, clearly seek affirmative relief. But the answer, although filed before the entry of the judgment of dismissal, was not filed until after the entry in the register of actions that the action was “dismissed by order'of plaintiff’s attorneys.” When was the action dismissed? This question is answered in Page v. Superior Court, 76 Cal. 372, in which it is held that an action which is directed to be dismissed by the plaintiff, in the register of actions, is not dismissed until the judgment is entered. Therefore, the action in this case was not dismissed until after the answer of defendants, in which' they sought affirmative relief, was filed. But the answer was not filed until after the expi [220] ration of the time within which the code provides that an answer may be filed. But it could.not be disregarded, or treated as a nullity, so long as it remained on file. The plaintiff’s remedy was a motion to strike it from the files. “ It was, perhaps, not strictly regular to file the answer after the time for answering had expired, without leave of the court; but as the default of the defendant had not been entered, we think the filing was not a nullity.” (Bowers v. Dickerson, 18 Cal. 420.) Appellant’s counsel contends that no notice in writing of the motion to vacate said judgment was given. It does not appear that any such notice was given; but it appears that appellant’s counsel were present at the hearing of the motion, and contested the same, which was a waiver of written notice. The object of giving the notice was fully accomplished without giving it. (McLeran v. Shartzer, 5 Cal. 70; Reynolds v. Harris, 14 Cal. 667; 76 Am. Dec. 459.) Order affirmed. De Haven, J., and McFarland, J., concurred.