Opinion
Department Two
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate the judgment. J. C. B. Hebbard, Judge.
COUNSEL:
Charles F. Hanlon, for Appellant.
J. C. Bates, for Respondent.
OPINION
THE COURT
An action was brought by the plaintiff to quiet his title to certain pieces of land in the city and county of San Francisco, plaintiff alleging that he was in possession. Upon his death his administratrix was substituted in his place. Defendant answered asserting title in himself, denying plaintiff's right of possession, alleging an ouster by plaintiff of defendant's possession, and concluding with a prayer for a decree establishing his title and enjoining plaintiff from asserting any claim to the land, or interfering in any manner with the possession thereof. Thereafter plaintiff procured a dismissal of the action, and a judgment of dismissal was duly given. Defendant then moved to vacate the judgment of dismissal, and from the order of the court refusing so to do he prosecutes this appeal.
He insists that by his answer he seeks affirmative relief, and that under section 581, subdivision 1, of the Code of Civil Procedure, it was erroneous for the court, under these circumstances, to dismiss the action. But this contention has been definitively settled against him in Moyle v. Porter , 51 Cal. 639.
The order appealed from is affirmed.