Phillips v. Wormley

58 Miss. 398

• Court: Mississippi Supreme Court
• Decided: October 15, 1880
• Status: Published

Opinion

George, J.,

delivered the opinion of the court.

After the cause was argued on final hearing, and whilst it was in the hands of the chancellor on submission, and during the vacation, the appellant went before the chancery clerk and dismissed his bill and paid the costs. Three days thereafter, the chancellor, knowing nothing of this dismissal, so far as the record shows, rendered his decree, also in vacation, dismissing the bill. The rendering of this decree after the voluntary dismissal by the appellant is now assigned for error; the appellant insisting that he had a right to have such a dismissal as would not have prevented his bringing another suit for the same matter. There is no .merit in the assignment. . It is true that the complainant may, at any time before final decision by the chancellor, dismiss his bill; but if the dismissal is made after the cause is set down for final hearing, it will have the effect, unless otherwise ordered by the chancellor, of a dismissal on the merits, and may be pleaded in bar to another suit. 1 Dan. Ch. Pr. (5th ed.) 793.

Decree affirmed.