Allen v. Lewis

74 Ala. 379 | Ala. | 1883

STONE, J.

— As a general rule, costs in equity may be decreed against either party, or may be apportioned, in the discretion of the chancellor; and an error in this regard, if there be nothing more in the case, is no ground for a reversal. 1 Brick. Dig. 733, §§ 137L-5. We have rulings which slightly modify this rule, and hold that, if a substantial question be presented on appeal, the decree may be varied as to costs, although affirmed in every other material point. — lb. § 1379. We need not say whether we approve this doctrine or not, as it does not arise in this case.

The rule we have announced is certainly a sound and just one. It enables the chancellor to impose the burden of the litigation where he finds the fault to lie; or to apportion the burden, where there has been mutual fault. But, to call this discretion into exercise, the cause, either in whole or in pai’t, must have been submitted to him for decision and decree. The judicial mind must have acted on some question of merit in the cause, before there can be a subject or predicate on which to exercise discretion.

The present case did not progress beyond the pleadings. There was an original bill, answers, and amended answers. If, at this stage of the case, the complainant had dismissed his case by his own act, and not by any decree of the chancellor pronounced on pleadings or evidence, then it could not be said the judicial mind was called to act in the controversy. The case would have presented no field • for the exercise of discretion. "Whenever an actor or plaintiff declines to proceed further, and dismisses his own suit, he thereby takes on himself the costs he has caused to be incurred. — 2 Dan. Ch. Pr. 1376* el seq.; Beames on Costs (22 Law Library), 228*; Cooth v. Jackson, 6 Ves. 12, 41; Brooks v. Byam, 2 Sto. Rep. 553; Eastburn v. Kirk, 2 Johns. Ch. 317; Saunders v. Frost, 5 Pick. 259; Ben v. Pidcock, 7 Halst. 363; Bruce v. Gale, 2 Beasley (N. J. Ch.), 211; Moses v. Dade, 58 Ala. 211; Wykam v. Wykam, 18 Ves. 395, 423.

The present case is presented in a different aspect. After the original bill and the original answers were filed, the defendants purchased their peace, or purchased the complainant’s cause of action. One term of the contract was, that complainant was to dismiss his suit. This he failed to do, and defendants were forced to set up the release, in bar of the further prosecution of the suit. They did this in an amended answer. They probably should have raised it by cross-bill; but no objection was made to the form of its presentation. Moses v. Dade, 58 Ala. 211; Jones v. Clark, at present term. Being raised by the pleadings, and the case going off on that defense, the exercise of the judicial function was necessarily called into requisition. This case is, therefore, brought directly within the rule, which allows to the chancellor a discretion in the imposition of costs; a discretion which we can not revise.

Affirmed.