Southern Pacific Transportation Co. v. Stewart

WRIT DENIED.

Plaintiff-applicant was not entitled of right to a dismissal without prejudice after defendant made a general appearance. CCP Art. 1671. Though defendant’s motion to vacate the judgment of dismissal is not positively sanctioned by statute, the hearing on that motion, in effect, was the trial court’s first knowledgeable opportunity to exercise its discretion under Art. 1671 to refuse to grant plaintiff’s motion for dismissal except with prejudice. Viewed in this light, the motion takes on the character of a timely-filed application for new *165trial, which would have been proper. The…