People ex rel. Polhemus v. Loewy

Citations

• 29 Cal. 264

Syllabus

<p>Dismissal of Action at Plaintiff’s Request.—Tho defendant in his answer to the complaint set up a cross demand, which he insisted was a proper counter claim, and prayed affirmative relief. Afterwards a stipulation, signed by the attorneys of the respective parties, was filed, whereby it was provided that upon the trial of the cause an account might be taken of the matters thus sot up; that if a balance should be found in favor of the defendant, judgment in his favor for such balance might be entered; that the stipulation should be regarded as a compromise of tho counter claim, and that the counter claim should be deemed stricken from the answer; Held, that on this state of the record the Clerk was not required or authorized by section one hundred and forty-eight of the Practice Act, in the absence of any direction from the Court or counsel of the defendant, to enter an order, upon request of plaintiff, dismissing the action.</p> <p>Powers of the Clerk.—Tho construction of the pleadings and stipulation, and determination of the rights of the parties with respect to the counter claim under them, required the exercise of judicial functions not conferred upon the Clerk.</p>