action at issue of its own motion, without notice and without consent of the parties. 14 Where plaintiff relies on the complaint after demurrer thereto is sustained, a judgment of dismissal or for defendant is proper.15 In Oregon, there is no special provision for dismissing a suit or action because the summons has not been served, and a proper manner of raising the question of lack of jurisdiction not appearing on the face of the complaint is by a special appearance. 16 When the plaintiff closes his evidence, if the court is of opinion that it would not sustain a verdict in favor of plaintiff upon the testimony, a nonsuit should be granted.17 In deciding whether the plaintiff has made a sufficient case, the cross-examination as well as the examination is to be considered.18 On defendant's motion for a nonsuit, the court will permit the plaintiff to supply the defect, if he can do so.19

§ 1479. Rights of interveners.-Plaintiff in an action to have certain taxes and bonds and sale of land for taxes declared void and certificate of sale enjoined may dismiss as against interveners as well as defendants, the interveners being the holders of the bonds and purchasers at the sale.20 Where an action is dismissed as to plaintiff, it cannot be retained to litigate questions between defendants in which plaintiff has no interest.21

§ 1480. By plaintiff.-Plaintiff has a right to take a nonsuit at any time before the jury retires, there being no counter

Cas. No. 4899; Tompson v. Campbell, Hempst. 8, Fed. Cas. No. 13944a; Hyde v. Barker, Burn. 148. Compare Linthicum v. Remington, 5 Cranch C. C. 546, Fed. Cas. No. 8377. As to power of court to dismiss action for want of prosecution, see Hassey v. South San Francisco Homestead etc. Assoc., 102 Cal. 611, 36 Pac. 945; Kubli v. Hawkett, 89 Cal. 638, 27 Pac. 57; Saville v. Frisbie, 70 Cal. 87, 11 Pac. 502; Kreiss v. Hotaling, 99 Cal. 383, 33 Pac. 1125; Murray v. Gleeson, 100 Cal. 511, 35 Pac. 88; McDonald v. Swett, 76 Cal. 257, 18 Pac. 324; Diggins v. Thornton, 96 Cal. 417, 31 Pac. 289; Fanning v. Foley, 99 Cal. 336, 33 Pac. 1098; Knight v. Fisher, 15 Colo. 176, 25 Pac. 78.

14 Teller v. Sievers, 20 Colo. App. 109, 77 Pac. 261.

15 Litch v. Kerns, 8 Cal. App. 747, 97 Pac. 897.

16 Belknap v. Charlton, 25 Or. 41, 34 Pac. 758.

17 Ensminger v. McIntire, 23 Cal. 593; Geary v. Simmons, 39 Cal. 232.

18 Masten v. Griffing, 33 Cal. 116. 19 Gardiner v. Schmaelzle, 47 Cal. 588; Abbey Homestead v. Willard, 48 Cal. 617. As to nonsuit in an action for negligence, see Watson v. San Francisco etc. R. R. Co., 50 Cal. 523.

20 Henry v. Vineland Irr. Dist. 140 Cal. 376, 73 Pac. 1061.

21 Long v. McGowan, 16 Colo. App. 540, 66 Pac. 1076.

claim.22 So in ejectment. Nor, under section 148 of the California Practice Act, is he bound to tender costs before the nonsuit,23 and the court has no jurisdiction to require that he pay the costs embraced in defendant's cost-bill, but he may be required to pay the clerk's costs.24 Upon defendant's refusal to accept the costs paid into court by plaintiff and tendered to defendant, it is not error for the court to permit the withdrawal of such money.25 But the plaintiff has not the absolute right to take a nonsuit after the case has been finally submitted and the jury has retired; but such right does exist at any time before such final submission and retirement.26 In ejectment, the plaintiff may at any time before trial dismiss the action as to some of the defendants and proceed against the others alone.27 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.28 In an action upon a joint and several bond, where all the persons who sign it are made defendants in the complaint, the plaintiff may go to trial, if he elects so to do, before all the defendants are served, and may dismiss as to some of the defendants and take judgment against the others.29 If the defendant set up a counterclaim asking for affirmative relief, the plaintiff cannot before trial have a dismissal of his own motion.30 Refusal of plaintiff to amend his complaint, upon demurrer being sustained, may be considered as a voluntary dismissal.31 Where a court is considering a demurrer to plaintiff's evidence, and

22 Hancock Ditch Co. v. Bradford 13 Cal. 637; Currie v. Southern Pacific Co., 23 Or. 400, 31 Pac. 963.

23 Cal. Code Civ. Proc., § 581, subd. 1; Dimick v. Deringer, 32 Cal. 488; Stewart v. Gray, Hempst. 94, Fed. Cas. No. 13428a. See Gordon v. Goodell, 34 Ill. 429; Folger v. The Robert G. Shaw, 2 Woodb. & M. 531, Fed. Cas. No. 4899; Minor v. Mechanies' Bank of Alexandria, 1 Pet. 46, 7 L. Ed. 47; Tobey v. Chaflin, 3 Sumn. 379, Fed. Cas. No. 14066.

24 Hopkins v. Superior Court, 136 Cal. 552, 69 Pac. 299.

25 Dane v. Daniel, 28 Wash. 155, 68 Pac. 446.

26 Brown v. Harter, 18 Cal. 76; Sanders v. Sanders, 24 Ind. 133. See

Casey v. Jordan, 68 Cal. 246, 9 Pac.
92, 305; Thompson v. Spraig, 66 Cal.
350, 5 Pac. 506; Hinkel v. Donohue,
90 Cal. 389, 27 Pac. 301; Waite v.
Wingate, 4 Wash. 324, 30 Pac. 81.
27 Reed v. Calderwood, 22 Cal.

464.

28 Dimick v. Deringer, 32 Cal. 488. 29 People v. Evans, 29 Cal. 429. See, also, Hamm v. Basche, 22 Or. 513, 30 Pac. 501.

30 Thompson v. Spraig, 66 Cal. 350, 5 Pac. 506; Hinkel v. Donohue, 90 Cal. 389, 27 Pac. 301; Denver etc. Ry. Co. v. Cobley, 9 Colo. 152, 10 Pac. 669; Robinson v. Placerville etc. R. R. Co., 65 Cal. 263, 3 Pac. 878.

31 Long v. McGowan, 16 Colɔ. App. 540, 66 Pac. 1076.

giving reasons why it will have to be sustained, the plaintiff may, even at that point, dismiss without prejudice.32

§ 1481. Dismissal of action-Continued.-An action will not be dismissed on the ground that at the time it was commenced there was another action pending between the same parties for the same cause of action, if prior to the second action the former had been dismissed by stipulation of the parties. 33 An action is properly dismissed if the complaint therein has been stricken out by the consent of both parties.34 An intervener against whom no relief is prayed can dismiss his complaint in intervention.35 The court has discretionary power to entertain and pass upon a motion made by amici curia to dismiss a suit which has been pending for years, without an effort by either party to bring it to trial, and which is a cloud upon the title to land, in which the moving parties are interested, though they are not parties to the action.36 No notice of motion is necessary before an amicus curia moves to dismiss an action on the ground that it is fictitious and collusive.37 The filing by the plaintiff of a motion to dismiss his action after the sustaining of a demurrer to the complaint is a waiver of any error of the court in ruling upon the demurrer.38 A motion to dismiss, made by the defendant at the close of the plaintiff's case, is waived unless renewed after all the evidence is in.39 An action which is directed to be dismissed is not dismissed until the judgment of dismissal has been entered in the judgment-book and an entry of dismissal made in the register of actions. Mere entry in the clerk's register does not constitute dismissal.40

§ 1482. Dismissal, effect of.-A dismissal of an action is in effect a final judgment in favor of the defendant. It is a final 36 Tomkin v. Harris, 90 Cal. 201, 27 Pac. 202.

32 Kan. Code, § 397; Pugsley v. Chicago etc. Ry. Co., 69 Kan. 599, 77 Pac. 579.

33 Dyer v. Scalmanini, 69 Cal. 637, 11 Pac. 327.

34 Smith v. Ling, 73 Cal. 72, 14 Pac. 390. As to dismissal for neglect to enter judgment for six months, see Gardner v. Tatum, 77 Cal. 458, 19 Pac. 879; Marshall v. Taylor, 97 Cal. 422, 32 Pac. 515; Rosenthal v. McMann, 93 Cal. 505, 29 Pac. 121.

35 Sheldon v. Gunn, 56 Cal. 582.

37 Haley v. Eureka etc. Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815.

38 Lowman v. West, 7 Wash. 407, 35 Pac. 130.

89 Illstad v. Anderson, 2 N. Dak. 167, 49 N. W. 659.

40 Page v. Page, 77 Cal. 83, 19 Pac. 183; Acock v. Halsey, 90 Cal. 215, 27 Pac. 193; Brady v. TimesMirror Co., 106 Cal. 56, 39 Pac. 209;

decision of that action as against all claims made by it, although
it may not be a final determination of the rights of the parties,
as they may be presented in some other action.41 The dismissal
of a joint defendant does not affect the liability of his co-defend-
ant.42 When plaintiff before trial files a dismissal with the clerk.
and the same is entered, the case is dismissed and beyond the
jurisdiction of the court, save for the purpose of entering a
judgment for defendant, for the costs.43 If an action is improp-
erly dismissed by the plaintiff, defendant's remedy is by appeal
from the judgment, and not by motion to set it aside.44

§ 1483. The same-Continued. The voluntary dismissal of
an action, without any agreement of the parties, or other cir-
cumstances tending to show that such dismissal was intended
as a final disposition of the case, is not a bar to another action.45
A dismissal of an election contest before citation is served upon
the defendant, and before any appearance has been made in the
action, does not operate as a retraxit, and is no bar to the insti-
tution of another contest.46 A judgment dismissing an action.
because of the failure of the plaintiff, who was a non-resident
of the state, to give security for costs, is not upon the merits,
and only concludes the matter then directly adjudged, and is not
a bar to a subsequent action, founded upon the same cause of
action, by the same plaintiff, after becoming a resident of the
state.47 A judgment dismissing an action for want of prosecution
may be set aside by the trial court upon good cause being
shown therefor.48 An order of court dismissing the proceedings
on a motion for a new trial cannot be set aside on an ex parte

Barnes v. Barnes, 95 Cal. 171, 30 Pac.
298, 16 L. R. A. 660; Rochat v. Gee,
91 Cal. 355, 27 Pac. 670.

41 Leese v. Sherwood, 21 Cal. 151;
Minor v. Mechanics' Bank of Alex-
andria, 1 Pet. 46, 7 L. Ed. 47; Amis
v. Smith, 16 Pet. 303, 10 L. Ed. 973;
Jay v. Almy, 1 Woodb. & M. 262, Fed.
Cas. No. 7236, 3 Black. Com. 295;
Episcopal etc. Society v. Episcopal
Church etc., 1 Pick. 372; Homer v.
Brown, 16 How. 354, 14 L. Ed. 970.
See Merritt v. Campbell, 47 Cal. 542;
Crossman v. Davis, 79 Cal. 603, 21
Pac. 963.

42 Carper v. Risdon, 19 Colo. App.
530, 76 Pac. 744.

43 Mont. Rev. Codes, Mo 6714;
Miller v. Northern Pacific Ry., 30
Mont. 289, 76 Pac. 691.

44 Higgins v. Mahoney, 50 Cal. 444.
45 Parks v. Dunlap, 86 Cal. 189,
25 Pac. 916; Pierce v. Hilton, 102
Cal. 276, 36 Pac. 595.

46 Lord v. Dunster, 79 Cal. 477,
21 Pac. 865.

47 Rosenthal v. McMann, 93 Cal.
505, 29 Pac. 121.

48 Lodtman v. Schluter, 71 Cal. 94,
16 Pac. 540.

application.49 Though the dismissal of an action may not be
warranted on the ground stated in the judgment order, yet if
the record discloses other grounds which, as a matter of law,
show that the plaintiff was not entitled in any event to recover
in the action, a judgment of dismissal may be upheld.50

§ 1484. Ejectment.-In ejectment, upon disclaimer of posses-
sion or interest in the property, a judgment for the plaintiff can-
not be entered. When such disclaimer is relied upon, the only
proper judgment is one of nonsuit.51 When the evidence and
the presumption reasonably arising therefrom tend to prove the
facts in controversy, a nonsuit is improper. The case should
be submitted to the jury.52 A nonsuit should not be granted if
there is evidence tending to prove all the material allegations
of the complaint.53 It will not be granted where there is some
evidence tending to show prior possession.54 It is error to refuse
in an action of ejectment a nonsuit as to such defendants as were
not in possession of the premises at the commencement of the
action.55

§ 1485. Judgment on nonsuit.-A judgment on nonsuit must
not be entered as a judgment on the merits, for the reason that
the defendant might proceed with his own case, and obtain
judgment on the merits, and by moving for a nonsuit he waives.
this right.56 A judgment of nonsuit is a final judgment within
the meaning of the Idaho code.57 The taking of a nonsuit in
a case tried before the court does not affect defendant's right
to judgment on his cross-complaint.58

§ 1486. Nonsuit-Nature of.-A motion for a nonsuit is in
the nature of a demurrer to the evidence. It admits the truth
of the plaintiff's testimony, together with every inference of fact
which the jury may legally draw from it.59 Like a demurrer to

49 Greehn v. Marker, 67 Cal. 364,
7 Pac. 783.

50 Wadsworth v. Union Pacific Ry.
Co., 18 Colo. 600, 36 Am. St. Rep. 309,
33 Pac. 515, 23 L. R. A. 812.

51 Noe v. Card, 14 Cal. 576; Pioche
v. Paul, 22 Cal. 106.

52 De Ro v. Cordes, 4 Cal. 117.
53 McKee v. Creene, 31 Cal. 418.
54 Sharon v. Davidson, 4 Nev. 416.

55 Garner v. Marshall, 9 Cal. 268.
56 Wood v. Ramond, 42 Cal. 645.
57 Lalande v. McDonald, 2 Idaho,
307, 13 Pac. 347.

58 Smith v. King, 9 Ariz. 228,
1905, 80 Pac. 357.

59 Brown v. Oregon Lumber Co.,
24 Or. 315, 33 Pac. 557; Warner v.
Darrow, 91 Cal. 309, 27 Pac. 737;
Butler v. Hyland, 89 Cal. 575, 26