Dimick v. Deringer

Citations

• 32 Cal. 488
• 1867 Cal. LEXIS 95

Syllabus

<p>Dismissal of Action.—The plaintiff in ejectment, if no counterclaim is made in the answer, has a right to dismiss the action as to one or all of the defendants. Dismissal of Action as to One of Several Defendants.—If one of several defendants in ejectment answers and the others make default, the plaintiff may, before trial, dismiss the action as to the defendant answering, and take judgment against the others.</p> <p>Defendant in Ejectment.—When the demanded premises are in the possession of a tenant, the tenant is the proper party defendant in ejectment. The landlord is not a proper party defendant, and if made so the Court will, on motion, order a nonsuit as to him.</p> <p>Landlord may Defend in Name of Tenant.—If the tenant in possession is sued in ejectment, the landlord may, in cases in which his title is drawn in issue, bo permitted to defend the action in the name of the tenant, but not in his own name. Setting Aside Default.—If the tenant sued in ejectment has, by neglect or design, suffered a default, the landlord may, upon a proper showing and motion in the name of the tenant, have the default set aside.</p> <p>Stay of Proceedings under Writ of Restitution.—If the tenant and landlord are jointly made defendants in ejectment, and the tenant suffers default, and the landlord answers in his own name, and the plaintiff dismisses the action as to the landlord and takes judgment against the tenant, the Court cannot on motion of the landlord order a stay of proceedings under a writ of restitution.</p> <p>Appealable Order.—If the plaintiff dismisses the action before trial, and the Court on defendant’s motion makes an order restoring the cause to the calendar for trial, no appeal lies from this order.</p>