OWEN CASEY et al., Appellants, v. MICHAEL JORDAN et al., Respondents, 68 Cal. 246

Ross, J. — In this case the court below gave judgment for the defendants, upon the ground that at the time of the commencement of the action there was another action pending between the parties for the same cause. The other action referred to is the suit entitled Casey v. Jordan, No. 8766, just decided here, and remanded to the court below for a new trial. The cause of action in the two suits is substantially the same.

The first action was tried in the court below, and submitted to the court for decision upon the briefs to be filed by the respective parties; and in that condition of the case the court, on motion of the plaintiffs, caused to be entered in the minutes an order dismissing the action without prejudice to another. Two days afterward the order of dismissal was vacated by the court on motion of the defendants in the action. In the mean time the second action was commenced.

The order of dismissal was invalid, for after the cause had been regularly tried and submitted for decision, it could not be dismissed on plaintiffs’ motion. (Heinlin v. Castro, 22 Cal. 102.) The order of dismissal was therefore rightly vacated and the suit carried to judgment. The judgment, however, is a general judgment in favor of the defendants. It should only have adjudged that the action abate. Cause remanded, with directions to the court below to modify the judgment as above indicated. McKee, J., and McKinstry, J., concurred. Hearing in Bank denied.