after stating the case, delivered the opinion of the court.
The plaintiff contends that at the time!she filed the prmaipe for dismissal she paid all the costs of the defendants in the action, and that neither of the answers stated a counterclaim or sought affirmative relief, and that therefore the action was dismissed, and the court was thereafter without jurisdiction. Section 1004 of the Code of Civil Procedure is as follows: “An action may be dismissed or a judgment of nonsuit entered in the following cases: (1) By the plaintiff himself, at any time before trial, upon payment of costs; provided, a counterclaim has not been made or affirmative relief sought by the answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon. (2) By either party upon the written consent of the other. (3) By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. (4) By the court, when upon the trial and before the submission of the case the plaintiff abandons it. (5) By the court, upon motion of the defendant, when upon the trial the plaintiff fails to *357prove a sufficient case for the jury. * * The dismissal mentioned in the first two subdivisions is made by entry in the clerk’s register.” It is apparent that a counterclaim is not interposed; but we are of the opinion that affirmative relief is sought by the answer of Davis, trustee. Under the provisions of Chapter 1Y, Title X, Part II of the Code of Civil Procedure, (Sections 1340-1399), which treats of actions for the partition of real property, the defendant is not required to plead facts sufficient to constitute a counterclaim in order to obtain affirmative relief. In actions brought for partition the plaintiffs must set out specifically and particularly so far as may be known to them, the interests of all persons in the property; the defendants must set rorth in their answers fully and particularly the origin, nature and extent of their respective interests. The rights of all parties may be put in issue, tried, and determined. An answer stating the matters required to be pleaded by the statute will, when established, entitle the defendants to full relief. While the rule ordinarily applicable to actions in general is that a defendant will not be granted affirmative relief unless he pleads and proves facts constituting a counterclaim, actions for partition comprise an exceptional class. In McClaskey v. Barr (C. C.) 48 Fed. 130, a suit for partition, the court said that “when the defendants have an interest in the property as co-tenants, it is incumbent on them, by their answer, to disclose the nature and extent of such interest as fully as the plaintiff in his complaint, is required to disclose the nature and extent of his interest. They become, as it were, plaintiffs seeking affirmative relief, and bound by all the rules of pleading to exhibit the facts upon which alone that relief can be properly extended,”— which is quoted from the text of Section 499, of Freeman on Co-Tenancy and Partition. The opinion in the case just cited, as well as Section 499 of .Mr. Freeman’s treatise, approves the following extract from Morenhout v. Higuera, 32 Cal. 290: “An action for partition under our statute is to some extent sui generis. The parties named in the complaint, whether as plaintiffs or defendants, are all actors, each representing his *358own interest. Whether plaintiffs or defendants, they are required to set forth fully and particularly the origin, nature, and extent of their respective interests in the property. This having been done, the interest of each or all may be put in issue by the others; and, if so, such issues are to be first tried and determined, and no partition can be made until the respective interests of all the parties have been ascertained and settled by a trial. ’ ’ Parties to an action in partition are all actors or plaintiffs, each against each and all others. (Senter v. DeBernal, 38 Cal. 637). A plaintiff may dismiss or discontinue an action where no judgment other than for costs can be recovered against him by the defendant, but when under the pleadings and evidence relevant thereto, such other judgment may be recovered, the plaintiff will not be permitted, as of course, to dismiss or discontinue. (McKesson & Hunt v. Mendenhall, et al., 64 N. C. 502. See, also, Estell's Executors v. Franklin, 29 N. J. Law, 264).
Nor do we think that the plaintiff complied with the requirement of Subdivision 1 of Section 1004, supra, that he must pay costs as a condition to a dismissal by himself before trial. The compensation of a receiver is taxable costs. (Hutchinson v. Hampton, 1 Mont. 39; Ervin v. Collier, 2 Mont. 605.) The compensation of a legally appointed receiver, while primarily chargeable to and payable out of the property or funds in his hands, as was held in Hutchinsion v. Hampton, supra, is nevertheless (in the absence of exceptional facts) ultimately taxable to the losing party, whose wrong occasioned the appointment, as was declared in Ervin v. Collier, supra. The receiver in Cornue v. Root, et al., was appointed upon the application of the plaintiff, who sought thereafter to dismiss the action without paying the amount of the costs chargeable against the defendants’ interest in the real property — indeed, it is not admitted that the plaintiff has any interest therein. The attempted dismissal by the plaintiff, without payment of the costs occasioned by her acts, was ineffectual. At the common law neither a disco untinuance nor a dismissal could be entered, except by order of the court or of the chancellor. *359Subdivision 1 of Section 100é alters the common-law and equity-rule by permitting the plaintiff himself, upon condition that he pay the costs, to dismiss his action (in the absence of a counterclaim pleaded or affirmative relief sought) at any time before trial by entry in the clerk’s register. Without the performance of this condition the attempted dismissal is ineffectual. It is true that a plaintiff may not infrequently be unable- to ascertain the amount of the costs at the time that he desires to dismiss the action; this is a penalty which he must suffer as a consequence of the mistake or error committed by him in bringing the action, which he impliedly admits should not have been commenced. We cannot, of course, on application for a writ of prohibition, determine whether the defendant or the District Court erred in the amount allowed to the receiver. There was jurisdiction to allow compensation and fix its amount.
The defendant, as the judge of the court over which he presides, has jurisdiction of the action. Let judgment be entered setting aside the alternative writ of prohibition, denying a peremptory writ, and dismissing the proceedings.
Judgment for the Defendant.