Allen v. Policy Holders Life Ins. Assn.

Motion to dismiss appeal or to affirm order or judgment from which appeal is taken.

The appeal is "from an order dismissing the plaintiff's action upon motion made therefor by plaintiff's counsel".

As stated by appellant in its brief herein —

[1] "The only question involved on this appeal is: Can the plaintiff, after she has closed her case, and after a motion for judgment on the pleadings and a motion for nonsuit has been submitted by the defendant to the court, and such motion has been argued and taken under advisement, dismiss her action without prejudice, and thus defeat the defendant's right to have the trial judge rule explicitly and directly upon the previous motions of the defendant?"

Subdivision 4 of section 581 of the Code of Civil Procedure, under the provision of which the order in question was made, in effect is as follows: "An action may be dismissed, or a judgment of nonsuit entered . . . by the court, when, upon the trial and before the final submission of the case, the plaintiff abandons it; . . ."

Although in some of the jurisdictions of the United States the position assumed by the appellant may be the accepted rule, by the preponderance of authority, and especially by the weight thereof in this state, the power of the trial court in the premises to order the dismissal of the action is fully attested by the following cases: Franks v. Cesena, 192 Cal. 1 [218 P. 437]; Westbay v. Gray, 116 Cal. 660 [48 P. 800];Strupelle v. Strupelle, 59 Cal.App. 526 [211 P. 248];Menotti v. Marchesi, 63 Cal.App. 49 [218 P. 439]; and see note in 79 A.L.R., p. 690 et seq.

The appeal is dismissed and the order or judgment is affirmed.

Conrey, P.J., and York, J., concurred.