§ 571. Reinstatement after voluntary dismissal.

There is a difference of opinion concerning the right of a complainant to have his bill reinstated after a voluntary dismissal. In some cases it is held that when he is allowed to dismiss his bill without prejudice, he may move to reinstate it,39 but it is elsewhere held that a bill which has been voluntarily dismissed by the complainant cannot be reinstated unless the dismissal was obtained by fraud.40 It was held that, after a bill had been dismissed for four years, there could be no revival of the suit, so as to permit amendment of the pleadings or the coming in of new parties. 41

$ 572. Involuntary dismissal-In general.

In equity the law as to nonsuits has no application.42 A defendant may, however, in equity, in certain instances, move for the dismissal of the bill. Any party may insist that the suit be dismissed as to a person not interested in the subject-matter thereof.43 It is said that it is no objection to the dismissal of a bill having no equity that the motion was made by a defendant while he was in contempt for want of an answer;44 but where the allegations authorize any decree whatever against such defendant, it is error to dismiss it as to him.45 One defendant may move to dismiss the bill for want of prosecution, though his solicitor is also retained for other defendants, who have not answered.46

39 Warner v. Graves, 25 Ga. 369; Gregory v. Pike, 33 U. S. App. 76, 67 Fed. 837.

40 Orphan Asylum Soc. v. McCartee, Hopk. Ch. (N. Y.) 423. See Doss v. Tyack, 14 How. (U. S.) 297; Edwards v. Perryman, 18 Ga. 374.

41 Harris v. Hines, 59 Ga. 427. See Ewing's Heirs v. Handley's Ex'rs, 4 Litt. (Ky.) 346, 14 Am. Dec. 140.

42 Strong v. Weir, 47 S. C. 307, 25 S. E. 157; Woolfolk v. Graniteville Mfg. Co., 22 S. C. 332.

43 Johnson v. Miller, 50 Ill. App. 60.

44 Smith v. Robinson, 11 Ala. 840. See, for consideration of rights of defendant in contempt, Mussina v. Bartlett, 8 Port. (Ala.) 277.

45 Hogan v. Smith, 16 Ala. 600. See, for dismissal at instance of defendant in contempt, Anonymous, 9 Ves. 512; Anonymous, 15 Ves. 174; Cranstown v. Goldshede, 2 Younge & C. 70; Howe v. Grey, 36 Law J. Ch. 488.

46 De Luze v. Loder, 3 Edw. Ch. (N. Y.) 419.

§ 573. Dismissal for want of prosecution.

The court will, on motion of a defendant, dismiss a bill for want of prosecution, where considerable delay has ensued. Thus, where a complainant unreasonably delays compelling an issue as to the defendants, or any of them, or taking the bill for confessed as to those not answering, the defendants as to whom the cause is at issue, if being injured by the delay, may have an order, on proper application and showing, to compel the complainant to speed the cause, or have his bill dismissed.47 A bill will not be dismissed for want of prosecution if necessary parties have not been served, or, being served, have not answered, where there is no negligence on the part of the complainant; or after the appointment of a master to take testimony, and before his report, where the complainant is in no more fault with relation to the delay than the defendant;19 or where a demurrer is pending, and the defendants may themselves expedite the cause by noticing the demurrer for argument;50 or where the delay was at the request of the defendant, and for his benefit.51 The filing of a replication without taking any further step in the cause is not a compliance with. a rule to speed the cause.52 Where, on motion to dismiss for

.48

47 Gilbert v. Van Arman, 1 Flip. 421, Fed. Cas. No. 5,414; Electrolibration Co. v. Jackson, 52 Fed. 773; Morgan v. Currie, 3 A. K. Marsh. (Ky.) 293; Whitney v. City of New York, 1 Paige (N. Y.) 548; Vermilyea v. Odell, 4 Paige (N. Y.) 121; Holmes v. Swilliams, 11 N. C. 371; Colding v. Badger, 3 Rich. Eq. (S. C.) 368.

48 Hoxey v. Carey, 12 Ga. 534. It is held that a bill will not be dismissed for want of prosecution against a co-defendant, who has not been served, until the complainant has been given a reasonable time to procure service on him, and that he will be allowed more than six months, where such defendant resides out of the state. Blanchard v. Bigelow, 109 Fed. 275; Jessup v. Illinois Cent. R. Co., 36 Fed. 735.

49 Warren v. Shaw, 43 Me. 429.

50 McVickar v. Filer, 24 Mich. 241.

51 Person v. Nevitt, 32 Miss. 180.

52 West v. Paige, 9 N. J. Eq. 203. The filing of a replication after notice given of a motion to dismiss the bill for want thereof is good cause against the motion, but it will only be allowed on payment of costs. Griswold v. Inman, Hopk. Ch. (N. Y.) 86. A dismissal for

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 filling 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.

571 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.

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.60 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. This motion should not be granted unless it is clear that the bill cannot be made good by amendment. 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; 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.