Page v. Hale

[Civ. No. 9684. Second Appellate District, Division Two. October 23, 1934.]

MARIE MARKHAM PAGE et al., as Executors, etc., Respondents, v. P. C. HALE et al., Defendants; L. M. GIANINI et al., Appellants.

COUNSEL

Cushing & Cushing, Cullinan, Hickey & Sweigert, Clarke & Bowker, Louis Ferrari and Edmund Nelson for Appellants.

Chandler, Wright & Ward for Respondents.

OPINION

The Court.

Appellants have taken this appeal from the orders of the court denying their respective motions for change of venue. [1] After their demands and notices of motion to that effect had been served and filed, respondents filed with the clerk an order directing him to dismiss without prejudice as to appellants. Thereafter the lower court entered the order denying said motions for change of venue. Such order for dismissal was effectual to dismiss the action as to the defendants who have taken this appeal, and the [1 Cal. App. 2d 566] order by the lower court properly followed. (Prendergast v. Mitchell-Silliman Co., 65 Cal. App. 456 [224 P. 243].)

Appellants apprehend that respondents may, if this appeal is dismissed, amend their complaint by adding as party defendants these appellants, who they declare would thereby be precluded from again seeking to assert their right to a change of venue. Respondents disclaim such intention, and to evidence good faith have offered to file a stipulation that at any time they seek to rejoin these appellants as party defendants the entire action may be ordered dismissed with prejudice. Except for such possibility it is obvious that the questions presented by this appeal are moot.

It is therefore ordered that within ten days respondents prepare and file in this court, to be transmitted to the lower court for filing therein, a stipulation as above outlined, and that thereupon this appeal be dismissed; and that unless such stipulation be so filed within the time indicated this motion to dismiss or affirm shall be denied.