Barnes

Action for divorce upon the ground of extreme cruelty. Judgment was entered in favor of plain!iff, and the defendant appeals.

1. After the filing of the complaint in this action, and before any appearance on the part of defendant, the attorney for plaintiff filed with the clerk of the superior court a paper properly entitled in the cause, and stating, “ The above-entitled action is hereby dismissed,” but no judgment of dismissal was entered. It is claimed by appellant that upon the filing of this paper the court lost jurisdiction of the action, and that jurisdiction was not restored by the subsequent appearance and answer of defendant. This objection to the jurisdiction of the court was made in various forms in the court below, and overruled. The court did not err in its rulings upon this point. The filing of the paper referred to was in effect an order for a dismissal of the action, and would have been sufficient authority for the clerk to h&ve entered a judgment of dismissal, but until the entry of such judgment the court retained jurisdiction of the case. (Page v. Superior Court, 76 Cal. 372 ; Acock v. Halsey, 90 Cal. 215 ; Rochat v. Gee, 91 Cal. 355 .)

2. It is urged by…

— I dissent from the judg *180 ment, and from so much of the foregoing opinion as holds that the action of the court helow in denying the motions of defendant for a continuance was not an abuse of discretion.

The defendant is a non-resident of the state, and her answer was filed October 15, 1889, and on the 25th of that month the court, on motion of plaintiff, and against the objection of defendant, set the case for trial on December 2, 1889; and afterwards the time for trial was continued by consent until December 6, 1889, without prejudice to the right of defendant to move for a further continuance. Upon that day the defendant moved for a continuance of the case until January 15, 1890. The motion was upon the ground that depositions of certain witnesses had not been returned, and also for the alleged reason that defendant was ill at Kansas City, Missouri, and unable to come to San Francisco without endangering her prospects for recovery. This motion was supported by the affidavit of one of her attorneys, which stated, among other things, “ that affiant is further informed by telegrams received from defendant on the twenty-third, twenty-sixth, and thirtieth days of November,…