Andrews v. French, 17 N.M. 615

Andrews v. French

17 N.M. 615 | N.M. | 1913

OPINION OF THE COURT.

ROBERTS, C. J.

Several errors are complained of, but in the view we take of the case it will only be necessary to consider the decision of the court in overruling-the plaintiff’s motion to dismiss the cause, as the decision of that question will be conclusive of the case.

1 2 A party usually has the right to discontinue any action or proceeding instituted by him, unless substantial' rights of other parties have accrued, and injustice-will be done them by permitting the discontinuance. While such dismissal must be by order of the court, and the-court lias discretionary control over its orders and decrees, if no facts appear which show that such dismissal will violate any of the rights or interests of the adverse party, a refusal of leave becomes merely arbitrary •■and without any basis upon which discretion can rest.

Matter of Petition of Butler, 101 N Y. 307. See also Winans v. Winans, 124 N. Y. 140.

And the object of the plaintiff' in asking for the dismissal is of no concern to the court.

Banks v. Uhl, 6 Neb. 145.

The same rule seems to be applied in equity cases, where no cross bill has been filed. Reilly v. Reilly, 139 Ill. 180. By sec. 2908, R. S. 1897, it is provided:

“Any cause pending in any court of this territory, may be dismissed by the plaintiff in said cause, at his costs, at any time before the same is submitted to the jury in causes tried by the jury, or before judgment has been rendered in causes tried by the court.”

3 Appellees contend, however, that this is a special statutory proceeding and is not governed by the general rule or the statute just quoted. It is a statutory proceeding, true, but it is conducted as an ordinary action at law and is triable in the same manner. The statute does not undertake to prescribe a different rule of practice, relative to such causes, after they are certified to the District Court. Appellees have failed to point out how any of their rights would have been jeopardized by a dismissal, or any injustice done them thereby.

Under sec. 81 of said chap. 79, supra, the court has the right to limit the time within which creditors shall present and make proof before the referee of their respective claims against the corporation, and may bar all creditors and claimants failing so to do within the time limited, from participating in the distribution of the assets of the corporation. So long as appellant could file and make proof of his claim, within the time limited by the court, no delay would lie occasioned in the final settlement of the estate. If lie could not refile his claim within the limited time, such fact did not concern the appellees. The statute above quoted says that, “any cause pending in any court * * * may be dismissed by the plaintiff, etc.” The language is very broad and includes all cases. The right to dismiss, however, is, of course, dependent upon whether such dismissal will leave the defendant in the same position as he would have stood if the suit had not been instituted; he would not have tile right where there has been a proceeding in the cause which has given the defendant a right against the plaintiff, or an injustice would be done the defendant by the dismissal.

1Ye think the court erred in refusing to allow appellant to dismiss the cause, and for this error the judgment of the lower court will be reversed and the cause remanded, with directions to sustain the motion to dismiss, and it is so ordered.

Parker, J., did not participate in this opinion.