Camden & Amboy Railroad v. Stewart

New Jersey Court of Chancery

Camden & Amboy Railroad v. Stewart

19 N.J. Eq. 69

DecidedFebruary 15, 1868

StatusPublished

This text of 19 N.J. Eq. 69 (Camden & Amboy Railroad v. Stewart) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Camden & Amboy Railroad v. Stewart, 19 N.J. Eq. 69 (N.J. Ct. App. 1868).

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Opinion

The Chancellor.

There is no precedent for allowing a complainant to dismiss his own bill, as to part of the relief prayed for in it, and permitting him to proceed with the residue.

The decrees quoted from the books of precedents are all decrees made upon the hearing of the cause, where, upon the merits, a bill may be dismissed» as to part of the relief prayed for, and the residue of the relief at the same time granted. In equity, a decree that a bill, or part of it, be dismissed, is the form in which it is adjudged that the relief prayed for is denied. It is a decision of the merits. Dismissal by a complainant is a mere discontinuance.

The authority from the Practical Register 180, founded on 3 Px. Alm. 12 and 37, is evidently a case whore the defendant applied to have the bill dismissed, because the complainant» pendente lite, disregarding the jurisdiction of the court, himself took possession of the property, as to which one part of the bill related. The court dismissed the bill, as to that part, but the bill having prayed relief as to other matters, it permitted the complainant to proceed as to them. This is evidently the light in which that authority is regarded in 1 Dan. Chan. Prac. 815.

The settled practice in chancery is, to allow, by way of amendment to the bill, what is sought here to be attained by dismissal of part. And the proceeding on such amendment Is settled by the rules and practice of the court. These rules are intended for the protection of the defendant, and to allow the same object to be effected by a dismissal of part of the bill, would evade'these rules. Were the new practice proposed in this case adopted, new rules would be required to give the samó protection.

The order must be set aside as improvidently made, contrary to the settled practice of the court, which requires such change as is here desired, to be made by amending the bill.

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The Chancellor.

There is no precedent for allowing a complainant to dismiss his own bill, as to part of the relief prayed for in it, and permitting him to proceed with the residue.

The decrees quoted from the books of precedents are all decrees made upon the hearing of the cause, where, upon the merits, a bill may be dismissed» as to part of the relief prayed for, and the residue of the relief at the same time granted. In equity, a decree that a bill, or part of it, be dismissed, is the form in which it is adjudged that the relief prayed for is denied. It is a decision of the merits. Dismissal by a complainant is a mere discontinuance.

The authority from the Practical Register 180, founded on 3 Px. Alm. 12 and 37, is evidently a case whore the defendant applied to have the bill dismissed, because the complainant» pendente lite, disregarding the jurisdiction of the court, himself took possession of the property, as to which one part of the bill related. The court dismissed the bill, as to that part, but the bill having prayed relief as to other matters, it permitted the complainant to proceed as to them. This is evidently the light in which that authority is regarded in 1 Dan. Chan. Prac. 815.

The settled practice in chancery is, to allow, by way of amendment to the bill, what is sought here to be attained by dismissal of part. And the proceeding on such amendment Is settled by the rules and practice of the court. These rules are intended for the protection of the defendant, and to allow the same object to be effected by a dismissal of part of the bill, would evade'these rules. Were the new practice proposed in this case adopted, new rules would be required to give the samó protection.

The order must be set aside as improvidently made, contrary to the settled practice of the court, which requires such change as is here desired, to be made by amending the bill.

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Bluebook (online)

19 N.J. Eq. 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/camden-amboy-railroad-v-stewart-njch-1868.