Palmquist

Plaintiff appeals from an adverse summary judgment.

Question Presented

Were there any issues of fact to be tried? This depends upon whether plaintiff is entitled to attack in this action the dismissal of a prior action between the same parties for the same relief.

Record

November 1, 1960, plaintiff commenced this action to quiet title to real property. His complaint alleged the same claim and prayed for the same relief as in a prior action brought by him against defendant to quiet title to the same property, which action was dismissed with prejudice by a dismissal signed by plaintiff’s counsel in that action. Defendant was not served in this action. She discovered its existence when the lis pendens filed by plaintiff blocked an attempted sale of the property. Thereupon defendant answered herein setting up the dismissal of the earlier action as a bar to this action. She also cross-complained claiming that plaintiff *342 has no interest whatsoever in the property. Defendant denied the material allegations of the cross-complaint.

Defendant filed a motion for summary judgment based on the dismissal of the prior action, and a motion to quash notice of deposition theretofore…