misses a bill for multifariousness.71 It should only be done. 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.

§ 578. Reinstatement after involuntary dismissal.

Although a bill which has been dismissed for want of prosecution is so effectually out of court that no motion or proceeding can be had in the cause, except for the purpose of carrying the order of dismissal into effect, the court will, under certain circumstances, entertain a motion to restore it. It is not, however, the usual course to restore a bill which has been once dismissed. It must be shown that substantial justice requires that it should be done. There is no instance in which a court has restored a bill which has been regularly dismissed for the mere purpose of agitating the question of costs.82 Where а bill was dismissed for want of prosecution, and afterwards, at the same term, the order of dismissal was vacated, and the cause reinstated, without notice to the defendant, it was held in Illinois that he, having been brought into court by service of process, was bound to take notice of orders subsequently made.83 It is generally held that, after dismissal of a bill for want of prosecution, the court has no jurisdiction to reinstate it at a subsequent term.84 The method of restoring a cause after a dismissal for want of prosecution appears to be by obtaining an order to discharge the order dismissing the bill, which, under the New York practice, could only be obtained upon the terms of the complainant's paying the costs of obtaining that order, and of the application for the order to discharge it.85

821 Barbour, Ch. Pr. 245; Jackson v. Pownal, 16 Ves. 204; Hannam v. South London Water Works Co., 2 Mer. 63. See Robinson v. Satterlee, 3 Sawy. 134, Fed. Cas. No. 11,967. Where a bill has been dismissed for want of prosecution, and afterwards reinstated, this will be held as a judicial determination that there was no unreasonable delay in the prosecution of it. Tarpley v. Wilson, 33 Miss. 467. 83 Smith v. Brittenham, 98 Ill. 188.

84 Byrd v. McDaniel, 26 Ala, 582; Parker's Heirs v. Anderson's Heirs, 5 T. B. Mon. (Ky.) 445; Miller v. Hemphill, 9 Ark. 488.

851 Barbour, Ch. Pr. 245. In Jackson v. Pownal, 16 Ves. 204, the order was upon complainant's undertaking to amend within a week, amending the office copy, and not requiring any further answer, and to reply forthwith, and speed his cause to a hearing.

§ 579. Effect of involuntary dismissal before hearing.

The effect of a dismissal prior to the hearing of a cause has given rise to much discussion, and is involved in some confusion.86 It seems to be well settled that a dismissal does not operate as a bar to another bill for the same cause, unless it appears that the suit was dismissed after an examination into the merits.87 The authorities hold that, where a suit is dismissed on the sole ground that the court has no jurisdiction of the subject-matter of the suit or of the parties, there is no adjudication of the merits, and no bar to another suit for the same cause.88 Great care should be taken to see that the order dismissing the bill shows that it was not dismissed after a hearing on the merits, for it is held that a general decree dismissing the bill, where there is nothing in the record to show whether or not it was heard on the merits, will be presumed to be a decree rendered upon a hearing on the merits.89 It seems that, even though the order does not recite that the bill was dismissed without prejudice, the whole record may be examined in order to determine the nature of such dismissal,90 and that wherever, from the face of the record, it affirmatively appears that an order of dismissal was based on matters other than the merits, such order of dismissal will not be a bar to a future action.91

86 For effect of order reciting dismissal by agreement, see Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. 199.

871 Barbour, Ch. Pr. 246; Hughes v. United States, 4 Wall. (U. S.) 232; Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; Moore v. Grubbs, 3 B. Mon. (Ky.) 77. See Smith v. Auld, 31 Kan. 266, 1 Pac. 626.

88 Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; Walden v. Bodley, 14 Pet. (U. S.) 156; Hughes v. United States, 4 Wall. (U. S.) 232; Smith v. McNeal, 109 U. S. 426; Freeman, Judgments, § 264; Williams v. Woods, 121 Ala. 536, 25 So. 619; Foster v. Busteed, 100 Mass. 409.

89 Foote v. Gibbs, 1 Gray (Mass.) 413; Smith v. Auld, 31 Kan. 266, 1 Pac. 626; Lanphier v. Desmond, 187 Ill. 370, 58 N. E. 343; Stickney v. Goudy, 132 Ill. 213, 23 N. E. 1034. See Loudenback v. Collins, 4 Ohio St. 251; Foster v. Busteed, 100 Mass. 409.

90 Smith v. Auld, 31 Kan. 266, 1 Pac. 626, where Judge Brewer carefully reviews the law of this question.

91 Carlisle v. Howes, 19 Ky. Law Rep. 1238, 43 S. W. 191.

Ch. 31]

$ 580. Effect of involuntary dismissal on answer or cross bill. A distinction should be drawn between a cross bill which seeks affirmative relief as to other matters than those brought in suit by the bill, yet properly connected therewith, and a cross bill which is filed simply as a means of defense, since there are rules applicable to one class which do not apply to the other. Thus, it is generally held that a dismissal of the original bill carries the cross bill with it when the latter seeks relief by way of defense, but it is otherwise, and relief may still be given, upon a cross bill, where the affirmative relief is sought thereby as to collateral matters, properly presented, in connection with the matters alleged in the bill.92

$ 581. Effect of order of dismissal.

A decree of dismissal is a final decree.93

After a dismissal

for failure to give security for costs, the chancellor has no power to make any further order in the case, unless it has been duly reinstated.94

92 Jesup v. Illinois Cent. R. Co., 43 Fed. 483, quoting Story, Eq. Pl. § 399, note, and citing Chamley v. Dunsany, 2 Schoales & L. 718; Ladner v. Ogden, 31 Miss. 344. See, also, Slason v. Wright, 14 Vt. 208: West Virginia Oil & Oil Land Co. v. Vinal, 14 W. Va. 637; Pennsylvania R. Co. v. National Docks & New Jersey J. C. Ry. Co., 52 N. J. Eq. 555, 30 Atl. 580; Dawson v. Amey, 40 N. J. Eq. 494, 4 Atl. 442.

93 Jones v. Turner, 81 Va. 709. An order dismissing an amended bill will be construed as an order dismissing the bill as amended. Bradish v. Grant, 119 Ill. 606, 9 N. E. 332, citing 2 Maddock, Ch. Pr. 368.

94 Hill v. Richards, 11 Smedes & M. (Miss.) 194.

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