Elderkin v. Fitch

2 Ind. 90

• Court: Indiana Supreme Court
• Decided: May 15, 1850
• Status: Published

Opinion

FITCH, filed his bill in chancery against Cooper and others, praying the foreclosure of a mortgage. One of the defendants made his answer to the original bill a cross-bill against his co-defendants and the plaintiff in the original bill. The plaintiff then dismissed his original bill. The Court, nevertheless, retained the cause as between the co-defendants and decreed in favor of one of them against the others, upon the answer, made, as we have said, a cross-bill.

An original and a cross-bill make but one suit. Dan. Ch. Pr. Vol. 3, p. 1743. — Wilck. Pr. 752.-3 Atk. 812.— Field v. Schieffelin, 7 John. Ch. R. 250. Slason v. Wright et al., 14 Vt. R. 208, was a bill to foreclose a mortgage. A cross-bill was filed. The original bill was dismissed. The Court says, “This disposes of the whole case.” “It is true, that in England, cross-bills have sometimes been entertained in a different Court from that in which the principal bill was filed” — Story’s Eq. Pl. 318 — but, in our practice, the cross-bill has been considered a dependency, merely, upon the principal bill. It is so considered in the United States Courts. Eq. Pl. by Story, ubi supra.

So, we think, in the practice in chancery under our statute, R. S. p. 848, where the answer to the original bill is used as a cross-bill also, in cases requiring such a bill, the two together make but one suit; and, hence, the dismissal of the original bill must carry with it, out of Court, the appendage. In Olney v. Shepherd, 8 Blackf. 146, this Court held that the dismissal of the attachment by the original attaching-creditor ended the case as to all subsequent creditors who had filed their claims.

A plaintiff in chancery has a right to dismiss his bill at his pleasure, before final hearing, upon payment of costs, if he is not in contempt,. Smith v. Smith, 2 Blackf. 232.

(1.)

J. Collins, for the plaintiffs. R. Crawford, for the defendants.

The decree of the Court below is reversed. Cause remanded, &c., at the cost of the party prosecuting the cross-bill.

) Smith, J., was absent.