In many cases, orders in contempt cases are reviewed by the writ of habeas corpus.101 It is held by the supreme court of the United States that the writ of habeas corpus may be used to obtain the discharge of one imprisoned under the order of a court of the United States which does not possess jurisdiction of the person or of the subject-matter, but that it may not be used to correct mere errors or irregularities, however flagrant, committed within the authority of the court;102 and that whether the facts justified the punishment of the offender is for the lower court to determine, and its conclusion upon such facts is not open to inquiry or review in proceedings by habeas corpus. It is held in some states that certiorari will lie.104 Upon review by habeas corpus, courts can deal only with such defects in the proceedings as render them not simply erroneous or irregular, but absolutely void, and the same rule is applied to the remedy of certiorari in some jurisdictions.105

103

the court, on defendant's refusal to comply with such order, attempts to enforce the same by the imposition of a fine, with an order for an execution for its collection, or by a definite term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment will be final, and an appeal will lie from it. 101 Rawson v. Rawson, 35 Ill. App. 505; People v. Kelly, 24 N. Y. 75; Burnham v. Morrissey, 14 Gray (Mass.) 226; Holman v. City of Austin, 34 Tex. 668; Com. v. Newton, 1 Grant Cas. (Pa.) 453; Ex parte Terry, 128 U. S. 289; State v. Galloway, 5 Cold. (Tenn.) 326; Yates v. Lansing, 9 Johns. (N. Y.) 395.

102 Ex parte Terry, 128 U. S. 289. See, also, Ex parte Hardy, 68 Ala. 303.

108 Ex parte Terry, 128 U. S. 289.

104 State v. Leftwich, 41 Minn. 42, 42 N. W. 598. For right to review contempt proceedings by certiorari, see People v. Turner, 1 Cal. 152; Tyler v. Connolly, 65 Cal. 28, 2 Pac. 414; State v. Judge of Civil District Court, 41 La. Ann. 314, 6 So. 539; State v. Lazarus, 37 La. Ann. 401; In re MacKnight, 11 Mont. 126, 27 Pac. 336, 28 Am. St. Rep. 451; Montgomery v. Muskegon Booming Co., 104 Mich. 411, 62 N. W. 561.

105 Ex parte Terry, 128 U. S. 289; Ex parte Kearney, 7 Wheat. (U. S.) 38; Ex parte Maulsby, 13 Md. 625; Phillips v. Welch, 12 Nev. 158. Mr. Rapalje, in his work on Contempts, says that two different views are entertained concerning the use of certiorari; one being that the writ is regarded as only intended to be used by the court of review in carrying out its superintending jurisdiction over the proceedings of the lower

court, and to bring up such proceedings when they were absolutely void for want of jurisdiction, and that this view is entertained in California, Louisiana, Nevada, and Utah, and that the other view is that the true office of the writ is the same as that of a writ of error, and authorizes the court of review to reverse or correct the judgment of the court below for errors of law of any kind, and that such is the doctrine in Arkansas, Iowa, and Pennsylvania. Rapalje, Contempt, § 154, citing People v. Dwinelle, 29 Cal. 632; Maxwell v. Rives, 11 Nev. 213; Young v. Cannon, 2 Utah, 560; Harrison v. State, 35 Ark. 458; State v. Myers, 44 Iowa, 580; Com. v. Newton, 1 Grant Cas. (Pa.) 453. In Nevada, it is held that, where a court acquired jurisdiction of the subject-matter and of the person of the petitioner, a court of review has no jurisdiction on appeal, writ of error, habeas corpus, or certiorari. Phillips v. Welch, 12 Nev. 158. Owing to the great confusion existing concerning the remedies of one adjudged guilty of contempt, the matter is largely regulated by statute; and as it is impossible to lay down any general rule on the subject, the statutes and decisions of each particular jurisdiction should be consulted relative to the remedy by appeal or error, habeas corpus, or certiorari, when the occasion presents itself. See, on this subject, Rapalje, Contempt, §§ 141-162.

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CHAPTER XXXI.

DISMISSAL OF SUITS PRIOR TO HEARING.

561. Dismissal of unauthorized suits.

If a solicitor files a bill without having proper authority from the complainant to do so, the proper course for the party to pursue if he wishes to get rid of the suit is to move that the bill may be dismissed, with costs to be paid by the solicitor filing the bill. This motion may be made by the complainant in person, or by solicitor duly authorized to make the motion.1 If the name of a person is made use of in a bill as co-complainant with others, without his consent, he may move that his name be stricken out, and that the solicitor who filed the bill be ordered to pay the costs.2 The motion should be made as soon as possible after the complainant has become acquainted with the fact of a suit having been instituted in his name. Notice of the intended motion must be given to the solicitor who filed the bill, and where one or more, but not all, the complainants, move, notice must also be served on the co-complainants and on the defendants. Where a sole complainant applies, service on the defendants is unnecessary, at least before decree. The motion should be supported by the affidavit of the complainant himself." To avoid the effect of such an application, the solicitor against whom it is made must show distinctly, upon affidavit, that he

11 Barbour, Ch. Pr. 226; Beach, Mod. Eq. Pr. § 449; Palmer v. Walesby, 3 Ch. App. 732; Crossley v. Crowther, 9 Hare, 384. See Gravenstine's Appeal, 49 Pa. 310, citing Adams, Eq. 314; supra, §§ 119, 172, 183. 21 Barbour, Ch. Pr. 227; Wilson v. Wilson, 1 Jac. & W. 457.

81 Daniell, Ch. Pl. & Pr. (4th Ed.) 308; Hall v. Laver, 1 Hare, 571; Dundas v. Dutens, 2 Cox, 235.

41 Daniell, Ch. Pl. & Pr. (4th Ed.) 308; Jerdein v. Bright, 10 Wkly. Rep. 380; Tabbernor v. Tabbernor, 2 Keen, 679; Pinner v. Knights, 6 Beav. 174; Hood v. Phillips, 6 Beav. 176.

1 Barbour, Ch. Pr. 227.

had especial authority from the party to institute the suit, and it will not do to assert generally that authority had been given." One of several complainants cannot have the whole bill dismissed for making him a party without authority. The court may dismiss a bill on its own motion, when its attention is called to the fact that the suit is being prosecuted without legal authority.8

§ 562. Dismissal on motion of complainant.

By the English chancery practice, the complainant retains the absolute control of the suit, and may dismiss it if he chooses at any time before decree. The complainant has a right to

1 Barbour, Ch. Pr. 227; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 308; Wright v. Castle, 3 Mer. 12.

7 Green v. Fagan's Distributees, 15 Ala. 335.

8 Town of Kankakee v. Kankakee & I. R. Co., 115 Ill. 90, 3 N. E. 741; Frye's Adm'rs v. County of Calhoun, 14 Ill. 132.

1 Barbour, Ch. Pr. 228; Carrington v. Holly, 1 Dickens, 281; Reilly v. Reilly, 139 Ill. 182, 28 N. E. 960; Simpson v. Brewster, 9 Paige (N. Y.) 245; Cummins v. Bennett, 8 Paige (N. Y.) 79; Smith v. Smith, 2 Blackf. (Ind.) 233; Cook v. Walker, 24 Ga. 331; Howard v. Bugbee, 25 Ala. 548; Mason v. York & C. R. Co., 52 Me. 82; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Kempton v. Burgess, 136 Mass. 192; Phillips v. Wormley, 58 Miss. 398; Saylor's Appeal, 39 Pa. 495; Bossard v. Lester, 2 McCord, Eq. (S. C.) 419; Connecticut & P. R. Co. v. Hendee, 27 Fed. 678; Moore v. Tilman, 106 Tenn. 361, 61 S. W. 61; Gillespie v. McEwen, 1 Tenn. Cas. 400; Bates v. Skidmore, 170 Ill. 233, 48 N. E. 962. "There are some cases holding that the chancellor has a discretion, and may in certain cases, likely to work a hardship to the defendant, refuse to allow a complainant to dismiss his bill; but these cases are not, in our opinion, in harmony with the current of authority, and we are not inclined to change the rule we have established." Reilly v. Reilly, 139 Ill. 184, 28 N. E. 960. See Bates v. Skidmore, 170 Ill. 233, 48 N. E. 962; Stokes v. Little, 65 Ill. App. 255. Among cases holding that the court has such discretion are Moore v. Tilman, 106 Tenn. 361, 61 S. W. 61; Stevens v. Railroads, 4 Fed. 97; Bank of South Carolina v. Rose, 1 Rich. Eq. (S. C.) 294; Bethia v. McKay, 1 Cheeves, Eq. (S. C.) 93; Booth v. Leycester, 1 Keen, 247; Badger v. Badger, 1 Cliff. 237, Fed. Cas. No. 717; City of Detroit v. Detroit City Ry. Co., 55 Fed. 569. See, also, Pullman's Palace Car Co. v. Central Transportation Co., 171 U. S. 138, considering such exceptions.

dismiss his bill, at any time before final decree, as to all or a part of the defendants. This is a motion of course.10 After a decree, however, the court will not suffer the complainant to dismiss his bill, unless upon consent; for all parties are interested in a decree, and any party may take such steps as he may be advised, to have the effect of it.11 It is held in the federal courts that, after a decree on the merits, referring the cause to a master to take an account, a complainant cannot discontinue as of right, and, if such discontinuance can be had, it is only when some equity therefor is shown.12 Generally, a complainant may dismiss his bill without prejudice after the cause has been heard on the evidence as reported by the master, and taken under advisement, where no decree has been rendered, or determination made of the rights of either party.13 The complainant has a right to dismiss his bill before the entry of final decrec, even though the chancellor has orally announced his decision.14 In some jurisdictions it is held that, after the filing of a cross bill seeking affirmative relief, the complainant can dismiss his bill.15 In oth

10 1 Barbour, Ch. Pr. 225; Dixon v. Parks, 1 Ves. Jr. 402; Blair v. Reading, 99 Ill. 600; Reilly v. Reilly, 139 Ill. 180, 28 N. E. 960.

111 Barbour, Ch. Pr. 228; Reilly v. Reilly, 139 Ill. 180, 28 N. E. 960; Hall v. McPherson, 3 Bland (Md.) 529; Gilbert v. Hawles, 1 Ch. Cas. 40; Carrington v. Holly, 1 Dickens, 280; Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702.

12 Garner v. Second Nat. Bank of Providence, 33 U. S. App. 91, 67 Fed. 833; Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702.

13 Langlois v. Matthiessen, 155 Ill. 230, 40 N. E. 496; Bossard v. Lester, 2 McCord, Eq. (S. C.) 419.

14 Purdy v. Henslee, 97 Ill. 389. But see McCurdy v. Mather, Kirby (Conn.) 273; Moriarty v. Mason, 47 Conn. 436. Where the suit has reached a stage where defendants are interested in having a decree previously rendered maintained, and other matters settled, in order that justice may be done between them, and a further decree is necessary, complainant cannot dismiss the bill without their consent. State v. Hemingway, 69 Miss. 491, 10 So. 575; American Bell Telephone Co. v. Western Union Telegraph Co., 21 U. S. App. 627, 69 Fed. 666; Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702; City of Detroit v. Detroit City Ry. Co., 55 Fed. 169; Davis v. Schwartz, 155 U. S. 631; Kimberly v. Arms, 129 U. S. 513.

15 Waite v. Wingate, 4 Wash. 324, 30 Pac. 81, citing Elderkin v. Fitch,