Whittel

(concurring).

A plaintiff has an absolute right to dismiss his bill in equity at any time before hearing, unless (1) defendants have sought affirmative relief against him, and (2) defendants would be prejudiced in some, manner other than being forced to bring a separate action or bill. Ex parte Skinner & Eddy Corp., 265 U.S. 86, 93 , 44 S.Ct. 446 , 68 L.Ed. 912 ; Jones v. Securities & Exchange Commission, 298 U.S. 1, 19 , 56 S.Ct. 654 , 80 L.Ed. 1015 . Respondents herein have shown no such prejudice, so that if we assume that they have sought affirmative relief, petitioner still has an absolute right of dismissal.

The Supreme Court, under 28 U.S.C.A § 377 has power to issue a writ of mandamus. Ex parte Skinner & Eddy Corp., supra. The statute is applicable to this *372 court. McClellan v. Carland, 217 U.S. 268, 279 , 30 S.Ct. 501 , 54 L.Ed. 762 . Therefore this court has the power to issue the writ.

Petitioner brought a suit in the Superior Court of the State of California in and for the City and County of San Francisco to have a trust declared as to 100 shares of stock in certain corporations hereinafter *367 mentioned standing in the name of defendants, and for an accounting as to the dividends thereon, claiming that the stock had been conveyed to the defendant George Whittel, Jr., in trust to deliver one-half thereof to the petitioner upon the death of the mother of George Whittel, Jr.

The case was transferred to the District Court of the United States for the Northern District of California. After transfer the petitioner amended his complaint and the defendant George Whittel, Jr., and George Whittel & Company, Inc., a corporation, answered the amended complaint, admitting that the 100 shares of stock had been transferred to George Whittel, Jr., as alleged in the complaint, but denied that the stock was transferred in trust. The answer admitted that George Whittel, Jr., is the owner of 50 shares of capital stock of the Whittel Realty Company, a corporation, and is the owner of all the issued outstanding capital stock of the defendant George Whittel & Co. The answer denies…