Opinion
Appeal from an order of the Superior Court of the county of Amador, denying a motion to vacate and set aside a judgment.
COUNSEL:
Eagon & Armstrong, for Appellants.
Rust & Caminetti, for Respondent.
JUDGES: In Bank. Ross, J. McKee, J., Myrick, J., McKinstry, J., Morrison, C. J., and Sharpstein, J., concurred.
OPINION
ROSS, Judge
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 of Civil Procedure, § 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.
[2 Cal.Unrep. 435]Order reversed and cause remanded, with directions to the court below to set aside the judgment.