James v. Center

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Docket Number

5615

Attorney(S)

Stetson & Houghton, McAllister & Bergin, for Appellants, argued that the dismissal was correct, inasmuch as the defendants did not set up a counter-claim. ( C. C. P. sec. 581, subd. 1.) P. G. Galpin, for Respondents, replied that to determine whether a pleading sets up a counter-claim or not is the exercise of judicial power. The act of the Clerk, who is a ministerial officer, in entering the judgment and deciding that there was no counter-claim, was an illegal act. He cited Stearns v. Aguirre , 7 Cal. 449; Kelly v. Austin , 17 Cal. 565: People v. Loewy , 29 Cal. 265.

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J. G. JAMES et al. v. JOHN CENTER et al.

OPINION By the Court:

The judgment of dismissal in form, entered by the Clerk, was properly entered, inasmuch as no counter-claim had been made. ( C. C. P. 581.)

The matters set forth in the cross-bills, so called, did not constitute a counter-claim, because not arising out of the transaction set forth in the complaint, and not connected with the subject of the action. ( C. C. P. sec. 438, subd. 1.)

The order appealed from was an order made after judgment, and therefore the subject of appeal.

The order setting aside the judgment was erroneous, because the plaintiff had the right to dismiss the action in the absence of a counter-claim.

Order reversed.

J. G. JAMES et al. v. JOHN CENTER et al.

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