
    [No 19344.
    Department One.
    April 25, 1894.]
    HIRAM C. PIERCE, Respondent, v. W. H. HILTON, Appellant.
    Dismissal op Action—Res Adjüdicata.—Where an action is dismissed by the plaintiff of his own motion, and without the consent of the defendant, the judgment entered upon the dismissal cannot be regarded as a! bar to another action for the same purpose.
    Appeal from. a judgment of the Superior Court of Santa Barbara County.
    ■ The facts are stated in the opinion of the court.
    
      B. F. Thomas, for Appellant.
    
      Wright & Day, for Respondent.
   Harrison, J.

Ejectment for a tract of land in Santa Barbara county, a portion of the Rancho Lomas de la Purificación. The plaintiff had judgment, and the defendant has appealed directly from the judgment without any bill of exceptions.

The defendant pleaded in his answer that the predecessor of the plaintiff had commenced an action against him to recover the same property on the 17th of June, 1887; that summons was issued in said action, and served upon him, and that, on the seventh day of July, 1887, he filed his answer therein denying every allegation in the complaint; that on the 23d of July, 1888, the attorney for the plaintiff in said action entered and signed a dismissal thereof upon the register of actions kept by the clerk, and that thereafter, October 3, 1891, the court, by its judgment, formally dismissed said action. To this defense the plaintiff demurred, and the court sustained the demurrer. The defendant now contends that this was error, for the reason that the judgment in the former action operated as a bar to the prosecution of the present action, and cites Merritt v. Campbell, 47 Cal. 542, in support thereof, that case, however, the judgment was rendered upon .greement by the parties for the dismissal of the cause, and that each should pay his own costs. In the present case the action was dismissed by the plaintiff of his own motion, and without the consent of the defendant. Under such circumstances the judgment entered upon the dismissal cannot be regarded as a bar to another action for the same purpose. (Parks v. Dunlap, 86 Cal. 189.) While the court held in Merritt v. Campbell, 47 Cal. 542, that the facts of that case authorized it to hold that the dismissal was a bar, it also qualified its ruling by saying: “We are not to be understood as holding that a mere dismissal of an action by the plaintiff under the statute, and without any agreement upon his part to do so, is to be held to constitute a bar to its renewal, nor that a judgment of nonsuit even, entered by consent, would have that effect, but only that a judgment of dismissal, when based upon an undertaking in pursuance of the agreement of the parties, must be understood, in the absence of any thing to the contrary expressed in the agreement, and contained in the judgment itself, to amount to such an adjustment of the merits of the controversy by the parties themselves through the judgment of the court as will constitute a defense to another action afterwards brought upon the same cause of action.”

The judgment is affirmed

Paterson, J., and Garoutte, J., concurred.  