The plaintiff Carpenter brought an action of ejectment for the possession of some land. He alleged an unlawful entry upon the same by the defendant, and his own ouster therefrom, claimed restitution of the premises, and *590damages for its withholding, and for rents, issues, and profits. The defendant answered denying the allegations of the complaint.

And further answering, averred himself to be the owner of the premises and entitled to the possession thereof; alleged a contract by which the plaintiff became his tenant, and claiming thereunder rent for the use and occupation, prayed judgment for the same in the sum of $1,000.

The plaintiff on the 27th of May, 1880, moved the court to dismiss “this action without prejudice.” The court refused to dismiss the action. Judgment was afterward rendered in favor of the defendant for the amount claimed. The plaintiff’s motion for a new trial was overruled, and from the order made therein and the judgment he appealed.

Respondent claims the appeal should be dismissed, because notice of intention to move for a new trial was not filed in time, under section 659 of the Code of Civil Procedure.

• Twelve days had elapsed from that on which the decision in ' the case was made, before the filing of that notice.. But nowhere in the record does it appear that any notice of the decision in the case was ever served on the plaintiff or his attorney. And no objection was made in the court below, by the defendant, to the settlement of the statement on said motion.

The defendant pleading, averring title in himself, and the attornment of the plaintiff as his tenant, and praying for judgment of $1,000, for his use and occupation of the premises, was nowhere therein “ denominated a counter-claim.”

This should have been done to made it effective as such. (§ 581, Code Civ. Proc.; Brannan v. Paty, 58 Cal. 330, 334.)

But even had it been so denominated, it would not have constituted a counter-claim.

The matters alleged therein did not arise out of the transaction, and were not connected with the subject of the action, according to the construction which this and other courts have given as proper to be placed on language such as that contained in section 438 of the Code of Civil Procedure, subdivision 1. (Moyle v. Porter, 51 Cal. 639, 640; James v. Center, 53 Cal. 31; Pomeroy on Remedies, § 775; Bliss on Code Pleading, § 375, and cases cited.)

*591The judgment and order should be reversed, cause remanded, and the court below directed to permit the plaintiff to dismiss his action, on payment of costs and disbursements accruing up to the date of the order refusing to dismiss the same.

Belcher, C. C., and Searls, C., concurred.

The Court. For the reasons given in the foregoing opinion the judgment and order are reversed and cause remanded, with directions to permit plaintiff to dismiss his action, on payment of costs and disbursments accruing up to the date of the order refusing to dismiss the same.