Singer

Concurring. — I agree with all of the foregoing except that I

do not feel it necessary to express a view about the perhaps mischievous dictum concerning excessive rental values.

*1041 Opinion

Plaintiffs’ complaint in unlawful detainer in the municipal court sought to recover possession of a store building leased to defendant for $750 per month, alleging defendant remained in possession after expiration of the term of the lease. It also included a prayer for damages at the rate of $27 for each day defendant remained in possession after the expiration of the lease. Apparently realizing that the open-ended nature of their prayer for damages would cause their demand to be beyond the $5,000 monetary limit of the jurisdiction of the municipal court, plaintiffs appended to their complaint a statement that “Plaintiffs hereby remit all damages in excess of the statutory jurisdictional limits of this Court, which is $5,000.00.”

Defendant having answered the complaint, the matter was set for trial. On the date set for trial the plaintiffs failed to appear and the trial court dismissed the action pursuant to Code of Civil Procedure section 581, subdivision 3, 1 and allowed costs including attorney’s fees to the defendant. Approximately one month after the dismissal, plaintiffs served and filed notice of two motions, one to set aside the default of plaintiffs and…