Swanson v. Siem

California Supreme Court

Swanson v. Siem

60 P.2d 281, 7 Cal. 2d 267, 1936 Cal. LEXIS 630

CourtCalifornia Supreme Court

DecidedAugust 31, 1936

DocketSac. 5001

StatusPublished

Cited by12 cases

This text of 60 P.2d 281 (Swanson v. Siem) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Swanson v. Siem, 60 P.2d 281, 7 Cal. 2d 267, 1936 Cal. LEXIS 630 (Cal. 1936).

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Opinion

LANGDON, J.

In a prior action, plaintiff, surviving member of a partnership, sued defendant, widow of the deceased partner, for recovery of possession of partnership property. Plaintiff had judgment but was directed to account for money thus received. Thereafter, on December 7, 1932, defendant procured an order directed to plaintiff to show cause why an accounting of the partnership moneys had not been given. Subsequently, on July 8, 1933, plaintiff filed an action against defendant alleging that he rendered an account, and asking that his rights be declared. Defendant filed an answer demanding an accounting from plaintiff. After a number of continuances, plaintiff dismissed his action on April 4, 1935. Defendant moved to set aside the dismissal on the ground that the answer sought affirmative relief, and the court granted the motion. Plaintiff appealed from this order.

*268 It is quite clear that the answer sought affirmative relief, and consequently the plaintiff had no authority to dismiss the action. (Code Civ. Proc., sec. 581; Islais & Salinas Water Co. v. Allen, 132 Cal. 432 [64 Pac. 713].)

The judgment is affirmed.

Curtis, J., Waste, C. J., Shenk, J., and Seawell, J., concurred.

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LANGDON, J.

In a prior action, plaintiff, surviving member of a partnership, sued defendant, widow of the deceased partner, for recovery of possession of partnership property. Plaintiff had judgment but was directed to account for money thus received. Thereafter, on December 7, 1932, defendant procured an order directed to plaintiff to show cause why an accounting of the partnership moneys had not been given. Subsequently, on July 8, 1933, plaintiff filed an action against defendant alleging that he rendered an account, and asking that his rights be declared. Defendant filed an answer demanding an accounting from plaintiff. After a number of continuances, plaintiff dismissed his action on April 4, 1935. Defendant moved to set aside the dismissal on the ground that the answer sought affirmative relief, and the court granted the motion. Plaintiff appealed from this order.

*268 It is quite clear that the answer sought affirmative relief, and consequently the plaintiff had no authority to dismiss the action. (Code Civ. Proc., sec. 581; Islais & Salinas Water Co. v. Allen, 132 Cal. 432 [64 Pac. 713].)

The judgment is affirmed.

Curtis, J., Waste, C. J., Shenk, J., and Seawell, J., concurred.

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60 P.2d 281, 7 Cal. 2d 267, 1936 Cal. LEXIS 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swanson-v-siem-cal-1936.

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