Parks v. Dunlap , 86 Cal. 189 ( 1890 )

Works, J.

— This is an action to foreclose a mortgage. There was a judgment in favor of the defendants in the court below, and a new trial was denied. The plaintiff appeals.

The only question in the case in this court is, whether there has been a prior adjudication, between the parties to this appeal, of the questions involved in this suit.

The respondents in this action brought a suit against the appellant and the parties who executed to him the mortgage sued on herein, to quiet title to the property in controversy. In the complaint in that case it was alleged that the respondents were the owners of the land, that the appellant’s mortgagors had no title thereto, but were asserting ownership therein adverse to the respondents; that so claiming to own the land, they had executed the mortgage now in suit to the appellant, but that said mortgage was invalid. In that action the appellant demurred to the complaint, whereupon the respondents voluntarily dismissed the action as to him. His claim to the lands, either as mortgagee of the claimants, or otherwise, was not set up or litigated, and the dismissal was not upon any agreement or compromise of the case, as to him, so far as the record in this ease shows. The respondents proceeded to trial as to the mortgagors of the appellant, and recovered a judgment against them that the respondents were the owners of the land, and that they had no title thereto or interest therein. This judgment was affirmed on appeal to this court. (Snodgrass v. Parks, 55 Cal. 55.)

The contention of the appellant is, that the dismissal as to him, in the former action, was a retraxit, amounted to an adjudication in his favor, as to the validity of his mortgage, and is a bar against the respondents to any defense against it. Conceding, however, that the question in litigation in the former action was the same now presented, it is well settled that the voluntary dismissal of an action, without any agreement of the parties or other circumstances tending to show that such dismissal was intended as a final disposition of the dispute between the parties, is not a bar to another action.

The authorities cited to the effect that a judgment on demurrer, when the demurrer goes to the merits of the action, may be a bar, are not in point. The judgment rendered was not on the demurrer, but upon a dismissal. The demurrer was not presented or passed upon by the court. Such a dismissal is not a bar. (Merritt v. Campbell, 47 Cal. 545.)

It may be otherwise, as we have said, where the dismissal is upon agreement of the parties. (Merritt v. Campbell, 47 Cal. 545; Crossman v. Davis, 79 Cal. 603.)

Judgment and order affirmed.

Fox, J., and Paterson, J., concurred.