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District Court of Appeal, Second District, Division 2, California.


Civ. 12924.

Decided: June 03, 1941

Samuel W. Newman and Meyer M. Willner, both of Los Angeles, for appellants. Robert M. Clarke, of Los Angeles, for respondent.

This appeal involves the extent of plaintiff's right to a dismissal after trial and argument. Plaintiff sued defendants Robbins upon an open book account for $3,262.62, the value of certain merchandise he had sold to defendants.

The trial occurred on June 3, 1940. The litigants and all of their witnesses testified and all competent documents offered by each were received in evidence. The evidence was closed at about 3:30 o'clock p. m., with the testimony of plaintiff in rebuttal. Both counsel announced to the court “That's all”. Following the court's declaration of a desire to see a designated authority, the transcript contains the one word “argument”. Following the last mentioned entry, the transcript contains 16 pages of the stenographic report of the proceedings had on July 22d with reference to the hearing of plaintiff's motion for dismissal filed by plaintiff on July 18th. Following the report of the proceeding on the motion to dismiss, the transcript contains 22 pages of exhibits. After the exhibits there appears “oral remarks of the court” made on June 3, 1940. Obviously this discussion by the judge followed the argument of counsel above indicated. In the course of oral remarks the court discussed the evidence at length and stated that the “facts in this controversy are practically without dispute”; that while defendants had been indebted to plaintiff, they were entitled to a credit on their account in the sum of $220.83; and that inasmuch as defendants had paid to the Halper Construction Corporation, a creditor of plaintiff, the sum of $3,041.79 upon plaintiff's request, it was necessary to make that corporation a party–defendant as provided by section 389 of the Code of Civil Procedure. Thereupon the court, without request from either party, entered an order directing that the Halper Construction Corporation be made a party to the action and continued the cause until July 8th in order to determine whether such answer complied with the order of the court. Pursuant thereto that corporation filed its answer on July 8, 1940, admitting receipt from defendants of the sum of $3,041.79 with plaintiff's consent and that this sum had been credited to plaintiff's account. The action was then continued to July 22d on which date it was made to appear to the court that plaintiff had on the 18th day of July filed a dismissal with the clerk. Defendants registered their objections to such dismissal but they were overruled and the court ordered the cause dismissed.

Notice of motion to vacate the dismissal and to permit findings, conclusions of law and judgment to be filed were presented to the court on the 9th day of August pursuant to notice of motion duly served. This motion was likewise denied. We have, therefore, three appeals: (1) from the ex parte dismissal of the action filed July 18th; (2) from the order of the court of July 22d, refusing to vacate the ex parte dismissal and ordering the cause dismissed, and (3) from the order of the court on the 9th day of August denying the motion of defendants to vacate the order of July 22d and to permit findings, decision and judgment to be filed, in favor of defendants.

Section 581 of the Code of Civil Procedure provides that an action may be dismissed under subdivision 1 by the plaintiff by written request to the clerk filed with the papers in the case at any time before trial provided no affirmative relief has been sought by cross action or answer; and by subdivision 4 “by the court, when upon the trial and before the final submission of the case, the plaintiff abandons it”.

In view of the fact that the case had been completely tried, the filing of the dismissal ex parte on July 18th was an abuse of the right of dismissal. While it is held that the words “before trial” mean “before submission” (9 Cal.Jur. 510) yet it is unnecessary to discuss at length the ex parte dismissal filed by plaintiff in view of our conclusions with reference to the dismissal ordered by the court when all parties were present on July 22d. The only statutory authority under which the plaintiff might have proceeded to effectuate a dismissal are contained in subdivision 4, section 581 of the Code of Civil Procedure. Under the circumstances disclosed by the record, it is clear to us that the court exceeded its statutory authority in ordering the dismissal. Having indicated that judgment should go for defendants, the court had thereby performed substantially the service required of it by the Constitution and the laws of the state. No other duty was left to the trial judge except to sign and file findings and judgment. As an intermediary or preliminary duty to the entry of such judgment in final form, the court conceived that, in order for the judgment to operate effectively and fully for the protection of plaintiff, the judgment should declare that the sum theretofore paid by defendants to Halper Construction Corporation should be declared so paid by the judgment. The order making Halper Construction Corporation a party defendant was not in the slightest essential or material to the formal award of a judgment in favor of defendant. That order was merely a precautionary measure. The order having been made, the case was effectually submitted then; but if not, then surely no other status could have been in contemplation on July 8th, after the new party's answer had been filed by the clerk of the court. “The practice of first ascertaining the views of the court, after a fair trial, and then dismissing and suing again, if such views are adverse, should not be encouraged.” Yarn v. Ft. Dodge R. Co., 8 Cir., 31 F.2d 717, 720. The trial courts will do well to remember that they are created by the state for the purpose of arbitrating controversies arising amongst the people; that on the one hand it is their duty to endeavor earnestly to administer equal justice, while on the other they must also strive to avoid worthless delays, needless litigation and repetitious proceedings. The practice of allowing a disconcerted litigant to consume the time of such tribunals to the point of ascertaining the disposition of the trial judge and then to retire to a position from which he may with impunity again harry his justified foe should be discouraged.

In view of the provisions of section 581 of the Code of Civil Procedure authorizing dismissals under certain conditions, we must assume that a dismissal is not justified under any circumstance other than those prescribed and that in order to obtain a dismissal a litigant must strictly comply with the language of the statute. An attempt to dismiss the action after the trial had been completed and the court had indicated its judgment is not a strict compliance with subdivision 4 of the section. Where no formal order is made submitting a case, the conduct of the court and the parties following the argument may be the equivalent of an order of submission. Such behavior is that which is presented by this record. So definitely does it appear that the parties as well as the court intended a submission of the case following argument on June 3d, that before either party could have presented additional evidence it would have been necessary for such party to present a formal motion requesting a reopening of the case. If we are correct in saying that it would have been necessary to reopen the case by a formal proceeding, in order to present additional evidence, then clearly the case was under submission after adjournment on June 3d. If the case had been formally reopened at any time after June 3d, the plaintiff would have been within his rights to file an ex parte dismissal under subdivision 1 and the court would have been authorized to grant a dismissal under subdivision 4. But inasmuch as the court practically awarded judgment to the defendants at the close of the trial on June 3d, it was thereby indicated that all had been done by way of proof or argument necessary to a determination of the issues. Argument of counsel and the subsequent oral observations of the court equally indicate that both court and counsel considered the case was then submitted for decision. At any time after the adjournment on June 3d, it was too late for the plaintiff effectually to file an ex parte dismissal or for the court in session to do so upon motion. Brown v. Harter, 18 Cal. 76; Heinlin v. Castro, 22 Cal. 100; Casey v. Jordan, 68 Cal. 246, 9 P. 92, 305; Casner v. Daily News, 16 Cal.2d 410, 106 P.2d 201 [dissenting opinion]; Rutherford v. Peppa, 53 Cal.App. 309, 199 P. 1111.

In Rutherford v. Peppa, it appears that the trial court had indicated its intention to render judgment for the defendant when the plaintiff attempted to dismiss the action but it was held that the dismissal came too late and the court's action in refusing to permit the dismissal and ordering judgment for defendant was approved by the appellate court. In MacDermot v. Grant, 181 Cal. 332, 184 P. 396, judgment had been ordered, findings and judgment had been prepared and signed but not yet filed when a dismissal was unsuccessfully attempted. In Casey v. Jordan, supra, plaintiff attempted to dismiss the action after submission upon briefs to be filed. At first the court granted the motion to dismiss and later vacated the order of dismissal. On appeal it was held that after the case had been tried and submitted, it could not be dismissed on plaintiff's motion.

In the instant action respondent urges: (1) that there was never a final submission of the cause; (2) that the trial had been continued by the court for the purpose of bringing in an additional party and (3) that his right to a dismissal continued for the reason that no formal order of submission had been made. In support of his contention, he undertakes to apply recent decisions (King v. Superior Court, 12 Cal.App.2d 501, 56 P.2d 268; Long v. Superior Court, 14 Cal.App.2d 753, 754, 58 P.2d 952), but in vain.

In King v. Superior Court, supra, following trial judgment had been ordered for the defendant and his counsel had been directed to prepare findings and decision. Before findings were served plaintiff's counsel moved to reopen the case in order that he might introduce further evidence. The case having been reopened for the reception of any evidence by either party, the order had the effect of vacating the submission of the cause. It was so understood by the parties concerned. The order of submission having been vacated generally so that either party might offer evidence or reargue his case, the right of dismissal was available to the plaintiff.

In Long v. Superior Court, supra, the action was to quiet title. After plaintiff rested his case, defendant moved for nonsuit to which plaintiff consented. The nonsuit having been granted, plaintiff filed a voluntary dismissal. The court then attempted to render and enter judgment quieting their title against plaintiff without offering any evidence. Finally, it was held that the cause had been dismissed before the trial court attempted to order judgment for defendants and for that reason the court was without jurisdiction to proceed further. That case had not been submitted. No order of submission had been made and none could have been made for the reason that the conventional nonsuit was granted at the conclusion of the plaintiff's evidence.

By no reasonable construction can the order, making the Halper Construction Corporation a party, be construed to mean the vacation of the submission. Nothing is thereby indicated that additional testimony was in prospect. The only purpose of designating a specific date to which the case should be continued was to see that the order made had been complied with. No other order having been made which could indicate the intention of the court to vacate the submission of the cause, a resubmission was wholly unnecessary. The case was ready for decision following the filing of the new answer.

Finally, respondent's attempt to apply the case of Franks v. Cesena, 192 Cal. 1, 3, 218 P. 437, is unavailing. There, after the evidence was closed, it was ordered that the case be “submitted * * * for consideration and decision on briefs of 10, 15 and 5 days”. On the 13th day following the order plaintiff filed an abandonment of the action. Thereafter the court construed his order to mean a submission for argument.

All three orders are reversed.

I dissent.

In my opinion the cause was not under submission upon the adjournment on June 3. The last item of the minutes of the court of June 3 reads as follows: “The court under section 389, Code of Civil Procedure, orders the Halper Construction Corporation made a party defendant and to file necessary pleading regarding the item of $3,041.79. Trial is continued to July 8, 1940, at 10:00 a. m.” The record does not disclose the proceedings on July 8, 1940. The minutes of July 22, 1940, read as follows: “Trial is resumed from July 8, 1940 with all parties present as before. W. N. Tiffany, reporter 10:05 A. M. to 10:30 A. M. Plaintiff on July 18, 1940 filed with the clerk a dismissal and defendants now object to plaintiff dismissing this action. The Court overrules objection of defendants and orders the cause dismissed. Defendants' Exhibit G (Oral remarks by the Court) is admitted and filed.” The order of the court requiring a new party defendant to be named and requiring such party “to file necessary pleading” prevents a ruling that the cause was submitted on the day of the making of the order. I agree with the view expressed in the majority opinion that the practice should be discouraged of dismissing actions after the views of the court are ascertained upon a fair trial, but under the statutes as enacted by the legislature and as interpreted by the courts, plaintiff was within his rights in filing the dismissal. If such practice is to be prevented, the remedy must be afforded by the legislature.

MOORE, Presiding Justice.

I concur: McCOMB, J.

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