Brunswick Tire Corp. v. Credit Tire Stores, Inc.

THE BRUNSWICK TIRE CORPORATION (a New York Corporation), Respondent, v. CREDIT TIRE STORES, INC., et al., Defendants; ROBERT RAE, Appellant.

COUNSEL

Holton & Schuelke for Appellant.

Gold, Silk & Quittner for Respondent.

OPINION

Crail, J.

This is a motion to dismiss the appeal or affirm the judgment under rule V, section 3, Rules for the Supreme Court and District Courts of Appeal.

[1] Appellant contends that three questions are involved on this appeal, and for convenience we state them in the language of the appellant, although none of them is applicable to the facts which appear in the record. "(1) Where no words of qualification such as 'without prejudice', or other terms indicating a right or privilege to take further legal [8 Cal. App. 2d 70] proceedings upon the subject accompany an order or decree of dismissal in the State of Arizona, is such order or decree presumed to be rendered on the merits? (2) Is such an order so made, as aforesaid, res judicata as to the issues raised in the Complaint so dismissed, under the laws of the State of Arizona? (3) May a litigant whose cause of action has been, by an order or decree of a court of competent jurisdiction in the State of Arizona, so dismissed as aforesaid, maintain an action in the State of California upon the same cause of action and against the same parties as the one so dismissed?"

The record before use shows that the case in Arizona upon which appellant relies was dismissed "without. prejudice" There is no merit in this appeal.

The motion to dismiss is denied and the motion to affirm is granted.

Stephens, P. J., and Scott, J., pro tem., concurred.