71 Miss. 347 | Miss. | 1893
delivered the opinion of the court.
We are of opinion that the motion to re-instate the case, made at the May term, 1893, of Coahoma chancery court, should have been sustained, and the appellant permitted to pursue its rights which had accrued iñ the progress of the cause and by the dismissal of their bill by the appellees. The equity of the bill is found in its averment that the two notes, due January 1, 1892, and January 1,1898, respectively, had-been paid. This, as we are informed by the record before us, had been met and answered by denial, as we are authorized to assume, and this answer was accompanied or followed by a motion by appellant to dissolve the injunction granted appellees in their bill, and affidavits were likewise filed in support of the motion to dissolve. The written suggestion of damages sustained by appellants was also filed. The hearing of the motion to dissolve, and, of course, the suggestion of damages, was postponed by appellees for more than a month, and, finally, when the chancellor was ready to proceed to hear the motion and suggestion, he was notified that the appellees had dismissed their bill the day before that appointed for the hearing.
The dismissal of the bill operated to dissolve the injunc
The general rule is, indisputably, that a litigant may dismiss his complaint; the exception is, that he may not after decree or decretal order, nor after his adversary is entitled to a decree by proceedings in the particular suit. “ The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant in the same position in which he would have stood if the suit had not been instituted; but that is not so where there has been a proceeding in the cause which has given the defendant a right against the plaintiff.” Cooper v. Lewis, 22 Eng. Ch. Rep., 177; Insurance Co. v. Roberts, 4 Sand. Ch. Rep., 634; Bank v. Rose, 1 Rich. Eq., 294; 1 Daniel’s Ch. Pl. & Pr., 790.
Reversed and remanded.