Burks

This action is one for specific performance of a contract for the sale of a lot. The defendants and respondents ask that the appeal he dismissed and base their contention in this regard upon the following facts:

Upon the date of the trial, to wit, February 23, 1921, and when the plaintiff had closed his case, a motion for a nonsuit was made by the defendants, was ordered granted by the court; on the same day this order was entered on the minutes» and noted in the register of actions by the clerk. From this judgment no appeal has been taken. On March 22, 1921, the trial court entered a second judgment, this being one to dismiss the action. From this judgment the plaintiff has appealed and it is this appeal which we are now asked to dismiss.

The judgment of nonsuit was a final judgment. (Clark v. Superior Court, 37 Cal. App. 732 [ 174 Pac. 681 ].) This being so, the court was without jurisdiction to make any other judgment. (Darlington v. Butler, 3 Cal. App. 448 [ 86 Pac. 194 ].)

From the dilemma of this situation the appellant seeks to be relieved by invoking the rule that a party cannot successfully assign as error a ruling which he has himself invited the trial court to make.…