American Zylonite Co. v. Celluloid Manuf'g Co.

32 F. 809, 1887 U.S. App. LEXIS 2858

Opinion

Coxe, J.

The ex parle entry in the rule-book was a nullity. A complainant in an equity action cannot in this manner discontinue the suit. An order of the court is necessary. Conner v. Drake, 1 Ohio St. 170. The right, however, of a complainant to dismiss a bill before hearing,, whore the defendant has acquired no substantive rights, is well nigh absolute. It must be an extraordinary case where the court refuses to exercise its discretion. Railroad Co. v. Rolling-Mill Co., 109 U. S. 702, 713, 3 Sup. Ct. Rep. 594; Stevens v. Railroads, 4 Fed. Rep. 97.

I have examined the defendant’s record sufficiently to be convinced that there is nothing which particularly distinguishes this from other equity actions. It is asserted that the testimony relied upon to establish prior invention is of such a character that the defendant may be unable 'to procure it again, but the rights of the 'defendant will be protected in this regard if the complainant is compelled, as a condition of the discontinuance, to stipulate that the defendant’s record maybe used in any new suit which may be instituted against it by the complainant. Brush v. Condit, 22 Blatchf. 246, 20 Fed. Rep. 826.

Upon filing such a stipulation, and paying the costs, the action may be discontinued.