§ 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 a 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.

85 1 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.

88

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. 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.

$ 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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CHAPTER XXXII.

REFERENCE TO A MASTER.

§ 582. Office and duty of master.

A master in chancery is an officer of the court appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as may require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services.1 The master is a judicial officer, acting as the representative and substitute of the court which appointed him. The office is of great antiquity, extending back at least to the time of Edward III. The duties of masters are various, and difficult to be specified. It is said that there is no question of law or equity which a master may not have occasion to decide upon, or respecting which he may not be called upon to report his opinion to the court, and that instances of reference

1 Kimberly v. Arms, 129 U. S. 512; Com. v. Archbald, 195 Pa. 317, 46 Atl. 5.

2 Bate Refrigerating Co. v. Gillette, 28 Fed. 673; Stewart v. Turner, 3 Edw. Ch. (N. Y.) 458. In Illinois it is held that he is but the ministerial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions, and his powers are delegated to him by the court, and the court can confer on him no judicial powers, and his acts become binding only by being approved and adopted by the court. Hards v. Burton, 79 IIL 504. See Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458.

8 Spence, Eq. Jur. 355; Com. v. Archbald, 195 Pa. 317; Bennet, Mast. Ch. 1. For history of the office of master in chancery, see Hoffman, Mast. Ch.; Ennesser v. Hudek, 169 Ill. 494, 48 N. E. 673; Schuchardt v. People, 99 Ill. 501.

6

to a master are almost as numerous as the matters subject to the jurisdiction of the court itself." A master is usually appointed by the court. The question of the appointment of masters is usually regulated by statute or rule of court. Courts usually have masters appointed for a specific time, who are termed "standing" or "regular" masters of the court. The court may appoint a special master upon application made to it for that purpose. The master should be disinterested in the proceedings before him. It is held that a brother of the next friend of the complainant, when such next friend has no interest in the subject-matter of the suit, is competent to act as a commissioner in taking testimony of the complainant. It is improper for a master to perform any official act as master, in a cause in which he is himself a solicitor, or partner of a solicitor. It is usually provided by statute or rule of court that the master should give a bond, conditioned for the faithful performance of the duties of his office. A master is liable, under certain circumstances, for his official acts.10 The compen

41 Barbour, Ch. Pr. 468; Bennet, Mast. Ch. 4. References to a master upon decrees or decretal orders are generally made for either of the following purposes: (1) To take accounts and make computations; (2) to make inquiries; (3) to perform some special ministerial acts required by the court, such as the sale of property, settlement of deeds, appointment of new trustees, etc. 1 Barbour, Ch. Pr. 468; Com. v. Archbald, 195 Pa 317, 46 Atl. 5.

5 Van Hook v. Pendleton, 2 Blatchf. 85, Fed. Cas. No. 16,852. For appointment of examiners in federal courts, see Van Hook v. Pendleton, 2 Blatchf. 85, Fed. Cas. No. 16,852.

6 Phillips' Appeal, 68 Pa. 137; Davis v. Davis, 30 Ill. 180; United States Equity Rule 82.

7 Jordan v. Jordan, 17 Ala. 466; Snyder v. Stafford, 11 Paige (N. Y.) 71; Mostyn v. Spencer, 6 Beav. 135.

8 Jordan v. Jordan, 17 Ala. 466.

Brown v. Byrne, Walk. (Mich.) 453; Bowers' Adm'r v. Bowers, 29 Grat. (Va.) 697; Wilhite v. Pearce, 47 Ill. 413.

10 See Wright v. Bruschke, 62 Ill. App. 358; Somerall v. Gibbes, 4 McCord (S. C.) 547; Van Doren v. Van Doren, 45 N. J. Eq. 580, 17 Atl. 805; Gill v. Barbour, 80 Va. 11; Fenwicke v. Gibbes, 2 Desaus. (S. C.) 629; McBride v. Farmers' Bank of Salem, 28 Barb. (N. Y.) 476; Turpin's Heirs v. McKee's Ex'rs, 7 Dana (Ky.) 301; People v. McLain, 3 Ill. App. 27.

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