Simmons v. Simmons

BERT SIMMONS, Appellant, v. DOROTHY SIMMONS, Respondent.

COUNSEL

Barry Sullivan and Carl L. Elver for Appellant.

LeRoy N. French and Platt & Sinai for Respondent.

OPINION

MARKS, J.

This is an appeal from a judgment in an action for divorce which dismissed plaintiff's action and decreed that the parties were not husband and wife because of a final decree to divorce rendered in the State of Nevada which was held to be "a good, valid, regular and legal decree".

The only question raised by plaintiff, necessary for consideration, is the validity of the ruling on his unsuccessful attempt to dismiss his action prior to trial.

[1] On May 2, 1940, plaintiff filed a written dismissal of his action with the clerk of the court. On the morning of May 3, 1940, when the case was called for trial, he called the attention of the trial judge to this dismissal and sought further dismissal by order of court which was denied him. [45 Cal. App. 2d 698]

A plaintiff may not dismiss his action if the defendant has appeared and has sought affirmative relief either by answer or cross-complaint. (Sec. 581, Code Civ. Proc.; 9 Cal.Jur. 511, and cases cited.) Here, by a separate defense in her answer defendant set up the defense of the Nevada divorce decree and that because of that decree the parties were no longer husband and wife. She sought the affirmative relief of a decree of the trial court establishing the validity of the Nevada divorce. This issue was tried and the trial court determined it in favor of defendant.

As the answer of defendant sought affirmative relief there was no error in refusing plaintiff's request to dismiss the action.

The determination of the other questions raised by defendant all rested within the sound discretion of the trial court. No abuse of discretion is shown.

[2] The orders from which plaintiff has attempted to appeal are not appealable. (Sec. 963, Code. Civ. Proc.)

The judgment is affirmed. The attempted appeal from the orders is dismissed.

Barnard, P. J., and Kelly, J., pro tem., concurred.