
    [Sac. No. 5001.
    In Bank.
    August 31, 1936.]
    ELMER SWANSON, Appellant, v. JESSICA SIEM, Executrix, etc., Respondent.
    Hjelm & Hjelm for Appellant.
    William N. Graybiel for Respondent.
   LANGDON, J.

In a prior action, plaintiff, surviving member of a partnership, sued defendant, widow of the deceased partner, for recovery of possession of partnership property. Plaintiff had judgment but was directed to account for money thus received. Thereafter, on December 7, 1932, defendant procured an order directed to plaintiff to show cause why an accounting of the partnership moneys had not been given. Subsequently, on July 8, 1933, plaintiff filed an action against defendant alleging that he rendered an account, and asking that his rights be declared. Defendant filed an answer demanding an accounting from plaintiff. After a number of continuances, plaintiff dismissed his action on April 4, 1935. Defendant moved to set aside the dismissal on the ground that the answer sought affirmative relief, and the court granted the motion. Plaintiff appealed from this order.

It is quite clear that the answer sought affirmative relief, and consequently the plaintiff had no authority to dismiss the action. (Code Civ. Proc., sec. 581; Islais & Salinas Water Co. v. Allen, 132 Cal. 432 [64 Pac. 713].)

The judgment is affirmed.

Curtis, J., Waste, C. J., Shenk, J., and Seawell, J., concurred.  