Smith v. Smith

2 Blackf. 232, 1829 Ind. LEXIS 13

Opinion

Holman, J.

The complainant, as administrator of Samuel Smith, deceased, filed his bill in chancery, in the Ripley Circuit Court, for relief against a settlement of his accounts as administrator, in the Probate Court. The hill admitted the sum of 476 dollars and 36 cents to be due to the heirs of the deceased. The answers claimed more than was adjudged to be due by the Probate Court; and called upon the complainant to answer interrogatories, &c. The Circuit Court made an order that the complainant should, on a certain day, pay into the hands of the clerk of that Court the amount admitted by the bill to be due. With this order the complainant failed to comply. He also failed to answer the interrogatories of the defendants, and they were taken as confessed. The complainant then moved for leave to dismiss his hill; which leave the Circuit Court refused, because the complainant w.as in contempt for not obeying the aforesaid order of the Court, and proceeded to enter up a final decree against him,

It is a general rule that a complainant may, upon payment of costs, dismiss his bill at any stage of the proceedings before a final hearing. 1 Newl. Ch. Pr. 177. Agreeably to Carrington v. Holly, Dick. 280, although a cause is brought to a bearing and an issue directed, until that issue is tried and there has been a determination, let the cause be in what stage it may, the complainant may, upon motion, dismiss his bill upon payment of costs. There is, however, another rule of chancery practice equally general, viz. that when a party is in contempt, he cannot be heard until he clears his contempt. But we do not consider, that the complainant’s non-compliance with the order of the Circuit Court, did of itself fix him in contempt, in the technical sense of that term. It was certainly a ground on which the Court might have adjudged him to be in contempt, if no explanation fas offered by him; but standing as it does in this case, without any adjudication upon it, it cannot be considered as such a contempt as precludes him from being heard in the casé.' And if he had a right to be heard at all, he had a right to dismiss his bill on payment of costs. The Court, however,' had a right to require the costs to be paid or secured before the leave was given.

Stevens, for the plaintiff. Dunn, for the defendants.

Per Curiam.

The decree is reversed. Cause remanded, <&,c.