Egan

I concur in the result announced, but I think the reasoning employed may lead to confusion respecting the rule as to when a judgment of dismissal is required and when a minute order will suffice.

The judgment is so palpably void on the ground that as a matter of law the court could not divest itself of jurisdiction by the order in question, that I think it should be so declared. Declarations respecting rules of law should, where possible, be clear and positive. Otherwise complications are bred and the application of law made more difficult, if not more doubtful. Here no proof is required and no finding of fact outside the face of the record is necessary. As a plain mandate of the law the court had jurisdiction and could not, by a mistaken order, divest itself thereof.

A rehearing was granted herein because we entertained a doubt concerning whether the order hereinafter mentioned dismissing the action was in fact void. For reasons hereinafter stated we have concluded that it is unnecessary to determine that question.

This action, instituted August 2, 1929, was at issue and on for trial on April 29, 1930. It involves a money demand for $1346.08. At the time the case was called for trial the court, acting under the mistaken belief that it had been bereft of jurisdiction thereof by the provisions of the statute of 1929 (Stats. 1929, chap. 477, p. 837, in effect August 14, 1929), gave an order, which was entered in the minutes only, purporting to dismiss the action. Later, and on October 16, 1930, on motion of the plaintiff after due notice, the court vacated said order of dismissal and restored the cause to the calendar. From this last-mentioned order defendant has appealed, asserting that the order of dismissal became final and remained in full force and effect and the trial court was without power to interfere with it.

In response to appellant’s contention the respondent says, among other things, that the order of dismissal had not become…