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 61 Barbour, Ch. Pr. 227; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 308; Wright v. Castle, 3 Mer. 12. ↑ 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. v. Central Transportation Co., 171 tions. See, also, Pullman's Palace Car Co. 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 decree, 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 III. 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, er jurisdictions it is declared that a complainant cannot dismiss his bill without prejudice after the filing of a cross bill against him.16 Whether the dismissal of the original bill carries with it the cross bill depends on the character of the latter. If the cross bill sets up matters purely defensive to the original bill, and prays for no affirmative relief, the dismissal of the latter necessarily disposes of the former; but where the cross bill set: up additional facts not alleged in the original bill, relating to the subject-matter, and prays for affirmative relief, upon the dismissal of the original bill the cross bill remains for disposi tion in the same manner as if it had been filed as an original bill. It is held that where, on the face of a cross bill, there is no equity, leave to the complainant to dismiss the original bill cannot prejudice the defendant.18 The cross bill may be re 2 Ind. 90; McGuire v. Van Buren County Circuit Judge, 69 Mich. 593, 37 N. W. 568. 16 City of Detroit v. Detroit City Ry. Co., 55 Fed. 569; Bank of South Carolina v. Rose, 1 Rich. Eq. (S. C.) 294; Booth v. Leycester, 1 Keen, 247; Western Union Telegraph Co. v. American Bell Telephone Co., 50 Fed. 662. 17 Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575, citing Worrell v. Wade's Heirs, 17 Iowa, 96; Markell v. Kasson, 31 Fed. 104; Small v. Peters, 104 Fed. 401. By statute in Illinois it is provided that no complainant shall be allowed to dismiss his bill after a cross bill has been filed, without the consent of the defendant. Rev. St. Ill. c. 22, § 36. This statute has been construed to not prevent a complainant from dismissing his bill as to a defendant not a complainant in the cross bill. No defendant can avail himself of this statute unless he has, by himself or in connection with other defendants, filed a cross bill before application is made to dismiss. Blair v. Reading, 99 Ill. 600. The statute does not prevent a complainant from dismissing his bill without defendant's consent after the cross bill has been dismissed on demurrer. Ogle v. Koerner, 140 Ill. 170, 29 N. E. 563. Where the defendants claim that their answer should be treated as a cross bill, but no steps are taken to compel an answer to it, and the defendants have voluntarily gone to a hearing, such contention must be regarded as abandoned, and consequently the complainants have a right to dismiss their bill. Purdy v. Henslee, 97 Ill. 389. Where a complaluant moves to dismiss his bill as to a defendant before such defendant asks leave to file a cross bill, the motion to dismiss bas the precedence, and should be first decided. Blair v. Reading, 99 Ill. 600. 18 Jacoway v. McGarrah, 21 Ark. 347. tained, although the original bill is dismissed.19 Though the dismissal of the bill may not abrogate or set aside matter finally adjudicated and determined in the progress of a cause, yet all matters merely interlocutory and unexecuted go with a bill when it is dismissed.20 Where a bill is filed on behalf of the complainant and all others of the same class, the complainant may dismiss the bill at his pleasure, before decree, but he cannot do so afterwards, or if other complainants have become parties to the suit.21 The original complainant may dismiss the suit so far as he is concerned, but it may still be prosecuted by the other parties complainant, who have become parties to the suit for their own benefit.22 563. Effect of agreements concerning dismissal. Where the parties to a suit enter into a stipulation, and agree that a decree shall be entered therein according to the case made by the pleadings, neither party can take any further steps in the cause, and an order granting the complainant the right to dismiss will be reversed. Courts will compel parties to perform 19 Small v. Peters, 104 Fed. 401; Ralls v. Ralls, 82 Ill. 243; Wilkinson v. Roper, 74 Ala. 140; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Sigman v. Lundy, 66 Miss. 522, 6 So. 245; Dawson v. Amey, 40 N. J. Eq. 494, 4 Atl. 442; Coogan v. McCarren, 50 N. J. Eq. 611, 25 Atl. 330. 20 Jenkins v. Bell, 2 Rich. Eq. (S. C.) 144. The effect of a reversal of a decree being to leave the cause pending for hearing, precisely as if no decree had been rendered, the complainant may dismiss his bill after such reversal. Mohler v. Wiltberger, 74 Ill. 163; Chickering v. Failes, 29 Ill. 294. 21 Piedmont & Arlington Life Ins. Co. v. Maury, 75 Va. 509; 1 Barbour, Ch. Pr. 228; Lashley v. Hogg, 11 Ves. 602; Belmont Nail Co. v. Columbia Iron & Steel Co., 46 Fed. 336; Hanford v. Storie, 2 Sim. & S. 196; Inness v. Lansing, 7 Paige (N. Y.) 583. See 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 794; Pemberton v. Topham, 1 Beav. 316; Stephenson v. Taverners, 9 Grat. (Va.) 398; Thompson v. Fisler, 33 N. J. Eq. 480; Pott v. Gallini, 1 Sim. & S. 206; Moore v. Prior, 2 Younge & C. 375; Collins v. Taylor's Ex'rs, 4 N. J. Eq. 163; Woodgate v. Field, 2 Hare, 211. 22 Piedmont & Arlington Life Ins. Co. v. Maury, 75 Va. 508; Simmons v. Lyles, 27 Grat. (Va.) 922. See McDougald v. Dougherty, 11 Ga. 570. |