Hershberger v. Blewett

55 F. 170, 1892 U.S. App. LEXIS 2096

• Court: U.S. Circuit Court for the District of Washington
• Decided: December 7, 1892
• Docket: No. 25
• Status: Published

Opinions

HAHEQBD, District Judge.

Tho original bill in this case was filed August 9, 1890. After hearing the arguments of counsel thereon, a demurrer to said original bill was by the court sustained. 46 Fed. Rep. 704. .By leave of court an amended bill was subsequently filed, and a demurrer to the same was argued and overruled. The defendants have answered, and exceptions to their answers have been submitted to the court, and overruled. The ease was at issue on the 2d day of July, 1892-, on which day a general replication was filed. More than three months thereafter, to wit, October 6, 3892, the complainants filed a motion to dismiss without prejudice on payment of the costs, without assigning a reason for dismissing. Ho evidence has been taken, and no application has been made to the court to enlarge the time for taking evidence. The defendants oppose the motion on the ground that the plaintiffs’ claim affects the title to Denny & Hoyt's addition to the city of Beattie, (the premises in which the plaintiffs claim to have an interest,) and prevents the sale of lots therein, and that any disposition of tho case which will leave the controversy open to future litigation will be a serious injury to them, and. to every owner of property in said addition.

By the court’s decisions of the questions which, have been argued, and decretal orders, tho claims and rights of the parties have been adjudicated. The defendants have been put to expense in making their defenses, and, in my opinion, they are now entitled to secure by a final decree the fruits of the litigation. The motion to dismiss without prejudice I regard as a request to the court for its consent to the use of judicial process for the mere purpose of harassing and oppressing tiie defendants. To grant the motion, the court will have to make a record which will be equivalent to a public announcement that the plaintiffs have leave to renew in this court the attack upon the title to the premises, and a warning to every person who buys or improves a lot in said addition that the expense of defending against such attack may be forced upon Mm or her whenever the plaintiffs shall be so minded.

The authorities cited do not sustain the solicitor for plaintiffs in maintaining that in equity a plaintiff may dismiss without prejudice, and without consent of tho defendant, at any stage of the case, upon payment of costs. In section 291 of Foster’s Federal Practice the learned author says:

“After appearance, and before a decree or decretal order, a plaintiff can usually obtain a dismissal upon payment of the costs of such of tho defendants as have appeared, but not if they, or any of them, would be injured thereby. * * After a decree or decretal order, however, the plaintiff may not discontinue without the consent of all parties who have acquired rights by the decree.”

The same rule is given in 1 Daniell, Ch. Pr. (5th Ed.) 793, which is another of the authorities cited by plaintiffs’ solicitor; and the same chapter, on page 790, contains the very explicit statement that-—

“Where, however, there has been any proceeding in the cause which has given the defendant a right against the plaintiff, the plaintiff cannot dismiss his bill as of course. Thus, where a general demurrer had been overruled on argument, Lord' Cottonham was of opinion that the plaintiff could not dismiss his hill as of course, the defendant having a right to appeal against the order overruling the demurrer, which right he ought not to be deprived of on ex parte application.”

House v. Mullen, 22 Wall. 42, is not in point, but tbe case of Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702, 3 Sup. Ct. Rep. 594, is analogous. Tbe decision of tbe supreme court in that case is based upon tbe rules of chancery practice given in tbe chapter of Daniell’s Chancery Practice above referred to, and other authorities in harmony therewith. After quoting from several, including tbe decision in Watt v. Crawford, 11 Paige, 472, and referring to a number of other authorities, Mir. Justice Woods, in tbe opinion of tbe court, says:

“The authorities cited sustain the refusal of the circuit court to allow Dumont to dismiss his bill. * * * After all these proceedings, and when the controversy between the parties was practically ended by the interlocutory decree of the court, the motion to dismiss his original hill was made by Dumont, the complainant therein. The rolling mill company insisted that if the original hill, carrying with it the cross bill, were dismissed, its claim would be barred by the statute of limitations. It would be hard to conceive of a clearer case for the application of the rules laid down by the authorities wo have eited. If the court, under these circumstances, had allowed the original bill to be dismissed without the consent of the rolling mill company, it would have.inflicted a palpable wrong on that company, and trifled with the administration of justice.”

Tbe remarks quoted are applicable to tbis case. Although, no cross bill has been filed, tbe case is not so materially different on that account as to require tbe application of a different legal principle. Tbe filing of a cross bill would not ipso facto deprive the court of discretionary power to dismiss without prejudice. Ho evidence has been taken, but tbe evidence is shut out by tbe rules, and tbe controversy between tbe parties has been practically ended by the interlocutory decrees upon tbe demurrers and exceptions to the answers. It is my opinion that tbe defendants are now entitled to have tbe cause set down for bearing upon tbe bill and answer, unless tbe court shall for good cause grant an application to enlarge tbe time for talcing evidence according to tbe rules. Host. Fed. Pr„ § 292. Motion denied.