delay, the complainant expedited the cause, between the notice and the making of the motion, the bill was not dismissed, but he was required to pay the costs of the motion.53 What constitutes laches in the prosecution of a case is dependent upon particular facts.54 The complainant is entitled to notice of a motion to dismiss for want of prosecution, and a peremptory order of dismissal without notice, and without giving reasonable time to proceed, is erroneous.55 Where either party is at liberty to proceed in the cause, such motion can only be made where there are other defendants against whom the cause is not in readiness for a hearing, in consequence of the neglect of the complainant to expedite the proceedings against them.56 Where the defendant's answer is accompanied by a plea or demurrer, he cannot obtain an order to dismiss the bill for want of prosecution until the demurrer or plea has been disposed of.57 The dismissal for want of prosecution should be made without prejudice;58 but it is held that a dismissal for want of prosecution is not a bar to another bill for the same cause, and that the addition by the court of the words "without prejudice” to the decree of dismissal after it is made, without notice to either of

want of prosecution while the case is pending on a reference before a master is not, under certain circumstances, erroneous. Gordon v. Gordon, 25 Ill. App. 310.

53 Tingle v. Parten, 3 Edw. Ch. (N. Y.) 228.

54 Failure to take out a subpoena for two years after the filing of a bill has been held to warrant dismissal. Bancroft v. Sawin, 143 Mass. 144, 9 N. E. 539. For cases considering what constitutes laches in this connection, see Lang v. Belloff, 53 N. J. Eq. 298, 31 Atl. 604; Sebring's Adm'r v. Sebring's Adm'r, 43 N. J. Eq. 59, 10 Atl. 193; Dey v. Hathaway Printing, Telegraph & Telephone Co., 41 N. J. Eq. 419, 4 Atl. 675; Beirne v. Wadsworth, 36 Fed. 614; Sargeant v. First Nat. Bank of Easton, 6 Wkly. Notes Cas. 370, Fed. Cas. No. 12,359; Lee v. Cargill, 10 N. J. Eq. 331.

55 Hoxey v. Carey, 12 Ga. 534; Kain v. Ross, 1 Lea (Tenn.) 76; 1 Smith, Ch. Pr. 314 et seq.

56 Whitney v. City of New York, 1 Paige (N. Y.) 548.

57 1 Barbour, Ch. Pr. 243.

58 Cleaver v. Smith, 114 Ill. 114, 29 N. E. 682; Moseby v. Lewis' Adm'rs, 4 Litt. (Ky.) 159; Ellis v. Baird, 6 Munf. (Va.) 456.

60

the parties to the suit, does not affect the rights of the parties.59 A decree erroneously dismissing a bill for want of equity, instead of for want of prosecution, should be reversed, and a dismissal without prejudice ordered. Under the English practice the defendant could not move to dismiss the bill after the complainant had obtained and served an order to amend. Merely obtaining the order, however, if it was not drawn up and served before the defendant moved to dismiss, would not prevent the dismissal of the bill. The defendant cannot move to dismiss the bill for want of prosecution pending an abatement of the suit by marriage or bankruptcy of the complainant.62

§ 574. Dismissal of bill on motion for want of equity.

Motions to dismiss bills for want of equity have, in certain circumstances, been considered and allowed, but they are generally conceded to be not according to approved practice. Such a motion is held to amount to a general demurrer to a bill, and to be based on the case made by the bill, and to admit its allegations, so far as they are well pleaded, to be true.63 This motion should not be granted unless it is clear that the bill cannot be made good by amendment.64 There is a difference of opinion concerning the right to move for the dismissal of a bill. In the federal courts it is held that the practice of dismissing a bill on motion, made while the parties are perfecting their plead

59 State v. Larrabee, 3 Chand. (Wis.) 179.

60 Cleaver v. Smith, 114 Ill. 114, 29 N. E. 682.

611 Barbour, Ch. Pr. 243.

621 Barbour, Ch. Pr. 244; Canham v. Vincent, 8 Sim. 277; Sellers v. Dawson, 2 Dickens, 738; Hall v. Chapman, 1 Dickens, 348; French v. Barton, 18 Ves. 425, note.

63 Grimes v. Grimes, 143 Ill. 550, 32 N. E. 847; Werborn's Adm'r v. Kahn, 93 Ala. 201, 9 So. 729; Clark v. Ewing, 93 Ill. 572; Cox v. Mobile & G. R. Co., 44 Ala. 611; Hickey v. Stone, 60 Ill. 458. See supra, § 195.

64 Grimes v. Grimes, 143 Ill. 550, 32 N. E. 847; Hooper v. Savannah & M. R. Co., 69 Ala. 529. See, also, Thompson v. Paul, 8 Humph. (Tenn.) 114; Holman v. Holman, 3 Desaus. (S. C.) 210; Fuller v. Metropolitan Life Ins. Co., 31 Fed. 690.

ings, will not be sanctioned.65 In other jurisdictions it is held that such a motion will be entertained at any stage of the proceedings.66

§ 575. Dismissal on court's own motion.

The court may, at any stage of the proceedings, dismiss a bill which shows on its face that the complainant has an adequate remedy at law;67 or where it fails to state facts entitling the complainant to relief;68 or where it is manifest that it has no jurisdiction over the subject-matter of the suit;69 or where the bill is multifarious.70 The chancellor rarely, sua sponte, dis

65 Betts v. Lewis, 19 How. (U. S.) 72; La Vega v. Lapsley, 1 Woods, 428, Fed. Cas. No. 8,123; Fuller v. Metropolitan Life Ins. Co., 31 Fed. 696.

66 Haughy v. Strang, 2 Port. (Ala.) 177; Springer v. Walters, 37 Ill. App. 326. An objection to the jurisdiction of the court for any reason not apparent on the face of the bill must be taken by special plea. It is only in cases where the want of jurisdiction affirmatively appears upon the face of the bill that it can be raised by motion. A motion to dismiss is not a proper mode of raising the defense of former adjudication. It should be presented either by a plea in bar or by evidence introduced under the answer. Desert King Min. Co. v. Wedekind, 110 Fed. 873; Wood v. Mann, 1 Sumn. 578, Fed. Cas. No. 17,952; Wickliffe v. Owings, 17 How. (U. S.) 47; Mexican Çent. Ry. Co. v. Pinkney, 149 U. S. 194.

67 Harris v. Galbraith, 43 Ill. 309; Hine v. City of New Haven, 40 Conn. 478; Dumont v. Fry, 12 Fed. 21; Lewis v. Cocks, 23 Wall. (U. S.) 466; Dennison Paper Mfg. Co. v. Robinson Mfg. Co., 74 Me. 116; Gage v. Schmidt, 104 Ill. 106; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black (U. S.) 545; McGuire v. Pensacola City Co., 105 Fed. 677.

68 Fougeres v. Jones, 66 Fed. 316; Earles v. Earles, 3 Head (Tenn.) 366.

69 Kimball v. Walker, 30 Ill. 482; Richards v. Lake Shore & M. S. Ry. Co., 124 Ill. 516, 16 N. E. 909; Charleston Ins. Co. v. Potter, 3 Desaus. (S. C.) 6; Earles v. Earles, 3 Head (Tenn.) 366; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black (U. S.) 545; Johnston v. Shaw, 31 Ala. 592; Small v. Lutz, 34 Or. 131, 55 Pac. 529; Reynes v. Dumont, 130 U. S. 354; Pittsburgh & Alleghany Drove Yard Co.'s Appeal, 123 Pa. 250, 16 Atl. 625.

70 City of Rutherford v. Alyea, 54 N. J. Eq. 411, 34 Atl. 1078; Chew v. Bank of Baltimore, 14 Md. 299; Felder v. Davis, 17 Ala. 418; Greenwood v. Churchill, 1 Mylne & K. 546.

It should only be done

misses a bill for multifariousness.71 when it is found impracticable from this cause to make a proper decree doing justice between the parties, or, perhaps, where it satisfactorily appears that the defendant may be embarrassed or otherwise prejudiced in his defense.72

§ 576. Dismissal for defect of parties.

As a general rule, a bill is not dismissed for nonjoinder of necessary parties, without an opportunity first given to the complainant to amend.73 This rule rests upon the supposition that the fault may be remedied, and the necessary parties supplied, but does not apply when this is impossible, and whenever a decree cannot be made without prejudice to one not a party.74 But if, after objection to a bill for want of necessary parties, the complainant neglects or refuses to bring them before the court, the bill will be dismissed.75 The misjoinder of parties. defendant is not a sufficient cause for the dismissal of a bill, as it respects other parties than those improperly joined,76 but it is a sufficient ground for dismissal that a person having no

71 Bean v. Bean's Adm'r, 37 Ala. 17; Chew v. Bank of Baltimore, 14 Md. 299.

72 Wales v. Newbould, 9 Mich. 45, 82.

73 Colbert v. Daniel, 32 Ala. 314; Thomas v. Adams, 30 Ill. 37; Hunt v. Wickliffe, 2 Pet. (U. S.) 201; Nash v. Smith, 6 Conn. 421; Smith v. Smith, 4 Rand. (Va.) 95; Welton v. Hutton, 9 W. Va. 339; Bugbee v. Sargent, 23 Me. 269; Mannhardt v. Illinois Staats Zeitung Co., 90 Ill. App. 315; Knapp v. Marshall, 26 Ill. 63; City of Wilmington v. Addicks (Del. Ch.) 43 Atl. 297; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427; Satterthwait v. Marshall, 4 Del. Ch. 337.

74 Fourth Nat. Bank of New York v. New Orleans & Carrollton R. Co., 11 Wall. (U. S.) 624; Lusk v. Thatcher, 102 Ill. 60; Picquet v. Swan, 5 Mason, 561, Fed. Cas. No. 11,135.

75 Greenleaf v. Queen, 1 Pet. (U. S.) 138; Jones v. Brittan, 1 Woods, 667, Fed. Cas. No. 7,455; Hunt v. Wickliffe, 2 Pet. (U. S.) 201; Singleton v. Gayle, 8 Port. (Ala.) 270; Bailey v. Myrick, 36 Me. 50; Van Epps v. Van Deusen, 4 Paige (N. Y.) 64; Huston v. McClarty's Heirs, 3 Litt. (Ky.) 274.

76 Bugbee v. Sargent, 23 Me. 269; Cockburn v. Thompson, 16 Ves. 321; Covenhaven v. Shuler, 2 Paige (N. Y.) 123.

right to sue is joined as co-complainant." If a plea or demurrer for want of proper parties is allowed, the bill is dismissed, unless the complainant takes issue upon the plea, or obtains leave to amend upon the usual terms.78

§ 577. Involuntary dismissal without prejudice.

Where the bill is defective for want of proper parties, or for want of necessary allegations, and it appears probable that, on a proper bill, the complainant will be entitled to relief, the bill should be dismissed without prejudice.79 Where it appears that equity has no jurisdiction, the bill should be dismissed without prejudice. This is the case where there is a complete remedy at law, or the court has not jurisdiction of the subject-matter.So Where a defendant in an action at law files a bill to make his defense in equity, and asks for a stay of all proceedings, and the court requires him to confess judgment in the action at law as a condition on issuing an injunction, and afterwards, on motion to dissolve such injunction, the court holds that a court of equity is without jurisdiction, the decree should direct that the judgment in the law action be set aside, and the case restored to the condition it was in when the injunction was granted.81

77 Clason v. Lawrence, 3 Edw. Ch. (N. Y.) 48; King of Spain v. Machado, 4 Russ. 225.

78 Van Epps v. Van Deusen, 4 Paige (N. Y.) 64, 25 Am. Dec. 516.

79 Sheldon v. Harding, 44 Ill. 68; Stott v. Baskerville, 6 Munf. (Va.) 20; Kirkpatrick v. Buford, 21 Ark. 268, 76 Am. Dec. 363; Barry v. Rogers, 2 Bibb (Ky.) 314; Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258; Patrick's Heirs v. White's Heirs, 6 B. Mon. (Ky.) 330; Wilson v. Eggleston, 27 Mich. 257; Miller v. McCan, 7 Paige (N. Y.) 451; Williams v. Jones, 79 Ala. 119; House v. Mullen, 22 Wall. (U. S.) 42. 80 Lacassagne v. Chapuis, 144 U. S. 119; Gamage v. Harris, 79 Me. 531, 11 Atl. 422; Smith v. Adams, 24 Wend. (N. Y.) 585; Clarke v. Sawyer, 2 Barb. Ch. (N. Y.) 411. Where a cross bill asks relief for eign to the litigation in behalf of parties who have a right of action at law, it should be dismissed without prejudice. Barrett v. Short, 41 Ill. App. 25.

81 Miller v. Miller, 25 W. Va. 495; Great Falls Mfg. Co. v. Henry's Adm'r, 25 Grat. (Va.) 575, citing Warwick v. Norvell, 1 Rob. (Va.) 308; Hooper v. Cooke, 2 Jur. 527, pt. 1.