Silverton v. Free, 261 P.2d 17 (Cal. Ct. App. 1953). · Go Syfert
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Silverton v. Free, 261 P.2d 17 (Cal. Ct. App. 1953). Cases Citing This Book View Copy Cite
11 citation events (3 in the last 25 years) across 2 distinct courts.
Strongest positive: Fuss v. Superior Court (calctapp, 1991-03-14)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) Fuss v. Superior Court
Cal. Ct. App. · 1991 · confidence medium
(Taliaferro v. Locke (1960) 182 Cal.App.2d 752, 755 [ 6 Cal.Rptr. 813 ].) “ ‘It is well settled that mandamus will not lie to control the discretion of a court or judicial officer or to compel its exercise in a particular manner, except in those rare instances when under the facts it can be legally exercised in but one way. [Citations.]’ [Citations.]” (Applegate Drayage Co. v. Municipal Court (1972) 23 Cal.App.3d 628, 636 [ 100 Cal.Rptr. 400 ].) A writ of mandate to compel the dismissal of an action may properly issue only when “. . . the entry of the dismissal is not subject to any …
discussed Cited as authority (rule) Egly v. Superior Court
Cal. Ct. App. · 1970 · confidence medium
Its refusal to do this, and its subsequent order setting the case for trial, were unwarranted and in excess of its jurisdiction.” (See also, Kaufman v. Superior Court, 115 Cal. 152, 155-156 [ 46 P. 904 ]; Long v. Superior Court, 14 Cal.App.2d 753 [ 58 P.2d 952 ]; Silverton v. Free, 120 Cal.App.2d 389, 390 [ 261 P.2d 17 ]; Schubert v. Bates, 30 Cal.2d 785, 788 [ 185 P.2d 793 ].) Accordingly, the case was effectively dismissed on December 22, 1969, provided “that a counter claim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant.” (Code Civ.
BEAUMONT SILVERTON, Petitioner,
v.
HARRY M. FREE, as County Clerk, Etc., Respondent
Civ. 4835.
California Court of Appeal.
Sep 25, 1953.
261 P.2d 17
1953 Cal. App. LEXIS 1951
BEAUMONT SILVERTON, Petitioner, v. HARRY M. FREE, as County Clerk, etc., Respondent.
Griffin.
Cited by 6 opinions  |  Published
GRIFFIN, Acting P. J.

Petitioner, in a claimed representative capacity of Teamsters Local Union No. 898, brought an action in Imperial County against Valley Transit Cement Company, Inc., a corporation, et al., involving a labor complaint. Defendant in that action answered and denied both generally and specially the allegations of the complaint, and as a part of the prayer asked that plaintiffs take nothing by their complaint and asked for its costs of suit and for such further relief as the court may deem proper.

On June 24, 1953, before trial, the attorney for plaintiff gave written request to the county clerk of that county, respondent herein, to dismiss the action as to all defendants, without prejudice. The clerk notified the attorney for plaintiff that since affirmative relief was sought in the answer “we[*390] ask you to obtain consent of counsel for defendant before dismissal is entered. ’ ’

Petitioner brought this proceeding to compel dismissal by the respondent clerk according to the written request. After service of an order to show cause defendant and respondent failed to appear and contest the proceeding.

Section 581 of the Code of Civil Procedure provides that an action may be dismissed by plaintiff by written request of the clerk at any time before the actual commencement of trial, provided a counterclaim has not been set up or affirmative relief sought by cross-complaint or answer.

The answer thus filed did not seek affirmative relief within the meaning of that section. (Simpson v. Superior Court, 68 Cal.App.2d 821 [158 P.2d 46] ; Estate of Somers, 82 Cal.App.2d 757 [187 P.2d 433] ; Sullivan v. Compton, 61 Cal.App.2d 500 [143 P.2d 357]; Lori, Ltd. v. Wolfe, 85 Cal.App.2d 54, 61 [192 P.2d 12] ; Jalof v. Robbins, 19 Cal.2d 233 [120 P.2d 19].)

Mandamus will lie to compel the dismissal of an action where the entry of the dismissal is not subject to any discretionary consideration, and the duty to enter dismissal becomes ministerial. (People v. Superior Court, 86 Cal.App.2d 204 [194 P.2d 571] ; Kahn v. Smith, 23 Cal.2d 12 [142 P.2d 13].)

Let a peremptory writ of mandate issue as prayed.

Mussell, J., concurred.