Cameron

This action was brought to condemn certain real estate alleged to be the property of defendants Cameron. In February', 1901, on plaintiff’s motion, the court made an order dismissing the action, and judgment of dismissal was accordingly entered. This appeal is from the judgment. Plaintiff had the right under the statute to dismiss the case at any time before trial, upon payment of costs, provided a counterclaim had not been made, nor affirmative relief sought by the cross-complaint or answer. (Code Civ. Proc., sec. 581, subd. 1.) No counterclaim had been made and no affirmative relief was sought by cross-complaint or answer. The plaintiff paid the costs. The above propositions are not disputed, but defendants claim that the plaintiff should not have been permitted to dismiss by reason of a stipulation. On the fourteenth day of May, 1897, the ease stood upon defendants’ demurrer to the plaintiff’s amended complaint, which demurrer was filed in November, 1895, and appears never to have been- disposed of in any manner. On said fourteenth day of May the parties entered into and filed a stipulation as to the value of the land and the number of acres in the respective tracts sought to…

I dissent from the order denying a rehearing. The order of the superior court cannot be affirmed without deciding one or the other of two propositions against the appellants, and neither of them has been decided or discussed in the Department opinion. Appellants contend: 1. That if the cause referred to in the stipulation had been decided by the supreme court on the merits, affirming the validity of the bonds of San Diego, the plaintiff could not then have dismissed the action, but would have been bound to enter the judgment as stipulated; and-2. That being so bound in the contingency stated, the plaintiff became absolutely bound when solely through its default in prosecuting the appeal referred to the condition of its obligation became impossible of fulfillment. These contentions may or may not be sound, but the order cannot be affirmed without deciding at least one of them in the negative.