Truett v. Onderdonk

Citations

• 5 Cal. Unrep. 785
• 50 P. 394
• 1897 Cal. LEXIS 948

Syllabus

<p>Dismissal of Action,—A Direction by Plaintiff to the Clerk, though sufficient to authorize him to enter a judgment of dismissal in a pending action, did not effect a dismissal, where such judgment was never entered; and the court therefore retained jurisdiction over the cause and the parties.</p> <p>Dismissal of Action—Fraud in Procuring.—After the Commencement of an equitable action for a partnership accounting, the parties submitted to arbitration, and, on payment of the amount awarded to him, plaintiff executed) to defendant a full release, and to the clerk a direction to enter a dismissal of the action; but no judgment of dismissal was ever entered. Plaintiff, on discovering, long afterward, that defendant had been guilty of a fraudulent suppression and misrepresentation of facts in effecting said settlement, filed a retraction of such authority to dismiss, and a motion for an order authorizing same, supported by affidavits setting out the fraudulent acts, none of which were controverted, and showing defendant’s absence from the • state. Defendant appeared by counsel, and filed a counter-motion for the entry of judgment of dismissal, pursuant to the previous authorization. Held, that an order refusing to vacate plaintiff’s direction, and ordering the entry of judgment of dismissal, was erroneous, though such dismissal was without prejudice, where there was no showing that defendant would ever return to the state.</p>