California Supreme Court, 1936

Swanson v. Siem

California Supreme Court · Decided August 31, 1936 · Langdon

7 Cal. 2d 267; 60 P.2d 281; 1936 Cal. LEXIS 630

Cases that cite this one

12 later published cases cite this decision.

State v. Mercantile Guaranty Co. (Cal. Ct. App. 1968)
Aten v. Aten (Cal. Ct. App. 1945)
Philpott v. Robinson (Cal. Ct. App. 1943)
Wright v. Sellers (Cal. Ct. App. 1938)
Dow v. River Farms Co. (Cal. Ct. App. 1952)
Foltz v. First Trust & Savings Bank (Cal. Ct. App. 1948)
Williams v. Kinsey (Cal. Ct. App. 1946)
Bard v. Kent (Cal. 1942)
People v. Nowell (Appellate Division of the Superior Court of California 1941)
Wright v. Farmers Automobile Inter-Insurance Exchange (Cal. Ct. App. 1940)
Fisher v. Zimmerman (Cal. Ct. App. 1937)
Jackie Coogan Productions, Inc. v. Industrial Accident Commission (Cal. Ct. App. 1937)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

LANGDON, J.

In a prior action, plaintiff, surviving member of a partnership, sued defendant, widow of the deceased partner, for recovery of possession of partnership property. Plaintiff had judgment but was directed to account for money thus received. Thereafter, on December 7, 1932, defendant procured an order directed to plaintiff to show cause why an accounting of the partnership moneys had not been given. Subsequently, on July 8, 1933, plaintiff filed an action against defendant alleging that he rendered an account, and asking that his rights be declared. Defendant filed an answer demanding an accounting from plaintiff. After a number of continuances, plaintiff dismissed his action on April 4, 1935. Defendant moved to set aside the dismissal on the ground that the answer sought affirmative relief, and the court granted the motion. Plaintiff appealed from this order.

*268 It is quite clear that the answer sought affirmative relief, and consequently the plaintiff had no authority to dismiss the action. (Code Civ. Proc., sec. 581; Islais & Salinas Water Co. v. Allen, 132 Cal. 432 [64 Pac. 713].)

The judgment is affirmed.

Curtis, J., Waste, C. J., Shenk, J., and Seawell, J., concurred.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.