
    No. 12,190.
    Schueler v. Oberto.
    Decided October 29, 1928.
    Mr. Bent. F. Koperlik, Mr. William T. Burris, for plaintiff in error.
    Messrs, Burgess & Adams, for defendant in error.
    
      Department Two.
    
   Mr. Chief Justice Denison

delivered the opinion of the court.

Oberto was plaintiff. On his motion the district court dismissed his action and the counterclaim of defendant and the latter brings error and moves for supersedeas. Both parties ask for a decision now. The judgment must be affirmed.

Notice of the motion to dismiss and that it would be called up for hearing March 3rd, at ten o ’clock, was served on Schueler February 28th. The motion was filed March 3rd at ten o’clock,,the hearing was continued till March 12th when the dismissal was ordered as above stated. The answer and counterclaim were filed March 3rd at eight o’clock.

The Code of 1921, section 184, provides that plaintiff may dismiss his action at any time before trial, if no counterclaim has been made.

The court’s ground of dismissal was that the notice was served before the counterclaim was filed. This was right. The order of dismissal “related to the first step taken in its procurement and is to be regarded as having been made at that date.” Hinkel v. Donohue, 90 Cal. 389, 27 Pac. 301.

The judgment is affirmed.

Mr. Justice Campbell, Mr. Justice Butler and Mr. Justice Walker concur.  