Canadian & American Mortgage & Trust Co. v. Fitzpatrick, 71 Miss. 347

Canadian & American Mortgage & Trust Co. v. Fitzpatrick

71 Miss. 347 | Miss. | 1893

Woods, J.,

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*350tion, and certainly entitled tbe appellant to some damages. Presumptively, it was an admission of the want of equity in their bill, and that the answer of appellant was true, and, in this case, the damages suggested would seem recoverable. But if, on hearing, this presumption should have been shown to be unfounded, and that the two notes referred to had been in fact paid, as alleged in the bill, still, on dissolution of the injunction, even by the voluntary act of appellees, appellant was entitled to some damages, as for advertising, attorney’s fees, etc.; and this right, which had arisen to appellant in the course of the proceedings, it should have been permitted to have established in that suit, and not have been subjected to the delay and expense incident to a resort to suit on the injunction bond in a law court.

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.