55 F. 569 | U.S. Circuit Court for the District of Eastern Michigan | 1893
This is an equitable cause, which was removed from the circuit court of Yfayne county ob tiie ground of toral prejudice, after ii, was set for hearing on bill and answer. A ¡notion to remand, after full hearing in liria court, was denied. ñ4 Red. Rep. 1. It war. regularly noticed in this court for hearing at the present March term, and, when, called on the opening day of the term, was specially set over to be heard at a later day. That day hawing arrived, the ooinpfalmmt submits two motions in the alternative. The first morion is that the case be postponed for hearing until the June term. The ground for this motion is not that the complainant and its counsel a,re not now prepared to argue the case on its merits, but it is that a case is now pending before the supreme comí, oí ¡.he stave of Michigan which, when decided, will settle the construction of the statutes and constitution of Michigan, and determine the only qhostion involved In this case. It may he fully conceded that ihir. court, upon such a question, will follow exactly the decision:; of the supreme court of Michigvio when rendered oecause they court Rule the law oí the state which we are to administer; but it is by no mea rs clear that the case referred to will necessarily decide the point isw involved, and it is also uncertain when the case vrih come on for fa at I determination. It 5s also avid that, the complainant proposes to Invoke the aid of the straw to test Ike question here involved, lu a gun; warranto proceeding to be begun after the Dili, day of May next egahmí, the respóndelo; the Detroit Citlventd Street Railway. It is nor, free from doubt wlierher the question can be presented in ilmt way. It is the duty of ¡he federal courts, »n of oihe-r courts, to gyve as speedy justice as may be to suitors, and. while If its also Ih'dr plain duty to accept state law from the state supreme court.-; on the construction of state laws and consi ííuííotis, ii never has bmr held proper for them, to delay litigation before them ¡mili ¡Ash; courts shall have decided the same qnenfions, for this would be an abdicatin'» of their duties as courts. YTum a question of law is presented, oí whatever character, they maxi; follow ¡he lights they have. Burgess v. Selirman. 107 U. S. 20, 3 Sup. Ct. Rep. 10. The motion to postpone wili be overruled.
The motion In the a Itera a the is to dismiss the bill in this ease without prejudice. The motion is aecexirpxirled with the frank statement Biol the complainant. prefers a-MRy tribunal than this in which to litigate Its righto, and that, v.iili ikio in. Mew, it proposes alter the Wth of May to procure the attorney general to institute quo warranto proceedings which cannot, be removed to this court Y,Tifie ii; may not lx* ¡usual to have so candid an avowal of the fact mudo, the federal court's are freqneuiiy ccnupelie.il to ad mm In Is ter justice in cases where owe oí lite pa riles would prefer another fomm. A motion to remand Implies this preference. We have found, however. that one of the respondent had the right, under the constitution and laws of the United Bin fen, to call upon this court to take jurisdiction of the case. Ii we one wrong, the question can be reviewed in the supreme court of the United States. As against the right of one party, the preference of another has not usually been regarded of weight. It may not be pleasant to administer justice
The motion to dismiss presents a question of equity practice which is not as clearly settled as could he desired. It seems hardly fair that after a case has been got ready for hearing and the defendant has gone to the expense of a full preparation, the complainant may deprive the defendant of the benefit of all that preparation by a dismissal, under which he reserves full power to harass Mm by bringing a new hill when he shall choose to do so, on the simple condition that he pay the costs, which are so notoriously inadequate to compensate defendant for his actual expenditures. In England, since 1845, the rule has been, by virtue of an order in chancery, that a dismissal of a hill after a cause is set for hearing is on the merits and must be a bar to the bringing of another-bill. General Ordinance No. 117; Mayor, etc., of Liverpool v. Chorley Waterworks Co., 2 De Gex, M. & G. 852; In re Orrell Colliery & Fire Brick Co., 12 Ch. Div. 681, 682. The equity rules of the United States supreme court adopting the practice of the high court of chancery of England were published in 1842, and it follows, therefore, that the equity practice in this regard of the federal courts continues to be that prevaüing in the English chancery courts before the new rule was promulgated, fin 1845. Badger v. Badger, 1 Cliff. 237; Stevens v. The Railroads, 4 Fed. Rep. 97; Western Union Tel. Co. v. American Bell Tel. Co., 50 Fed. Rep. 662.
It is very clear from an examination of the authorities, English and American, that the right of a complainant to dismiss his hill without prejudice, on payment of costs, was of course except in certain cases. Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U. S. 702, 3 Sup. Ct. Rep. 594. The exception was where a dismissal of the bill would prejudice the defendants in some otlv-y way than by the mere prospect of being harassed and vexed by future litigation of the same kind. The exceptions are as broadly and clearly stated as anywhere by Chancellor Harper, of South Carolina, in the case of Bank v. Rose, 1 Rich. Eq. 294, as follows:
“Harper, Oh. The general rule is, as contended for, that the plaintiff at any tíme before decree, perhaps before tbe bearing, may dismiss bis bill as of course upon tbe payment of costs; but certainly it cannot be said that the rule is without exception. The exception, stated in general terms, is that it is within: the discretion of the court to refuse him permission to do so if the dismissal would work a prejudice to the other parties; and I gather from the cases, compared with each other, that it is not regarded as such prejudice to a defendant that the complainant, dismissing his own bill, may at his pleasure harass him by filing another bill for the same matter. But whenever, in the progress of a canse, a defendant entitles himself to a decree, either against the complainant or against a codefendant, and the dismissal would put him to the expense and trouble of bringing a new suit and making his proofs anew, such dismissal wall not be permitted.”
In that case there had been a cross hill filed, and affirmative relief asked, and the case had been prepared for hearing, and it was held a case where the motion to dismiss could not be granted. In
“Under that practice Li. e. the English chancery practice before 1815] the general rule was that a complainant might dismiss his bill upon payment of costs at any time before interlocutory or final decree; and. this has been, the general practice both in the federal and state courts. There axe, however, certain well-recognized exceptions to this rule, and the question which arises upon this motion is whether the defendant comes within any of these exceptions. These exceptions are based upon the principle that a complainant should not bo permitted to dismiss Ms bill when, such action would be prejudicial to the defendant. But this does not mean that it is within the discretion of the court to deny the complainant this privilege under any circumstances, where it might think such dismissal would work a hardship to the defendant, as, for example, where it might burden him with the trouble and annoyance of defending against a second suit; but it means that if, during the progress of the case. Ilie defendant has acquired some right, or If he seeks or has become entitled to affirmative relief, so that it would work an actual prejudice against Mm to have the case dismissed then, the complainant will not be permitted to dismiss Ms bill.”
The question remains whether the case at bar comes within, the exceptions. If it does not, we have no discretion to deny the motion If it does, we have a discretion to grant or refuse it. The bill was brought to have the rights of the Detroit Citizens’ Street-Railway Company to use the streets of Detroit declared ended after the 9th of next May, in order to enable the city to sell the street privileges now enjoyed by that company to the highest bidder, and to give the future purchaser time in which to make the necessary preparation to exercise the franchise to be conveyed to him. The bill recited that the predecessor of the Detroit' Citizens’ Street-Railway Company in enjoyment of the grant — the City Railway Company- — was organized in 1863, with a corporate life limited to 30 years, and that soon after its organization it was granted street privileges or franchises to last until May, 1893; that in 1879 the common council of the city unlawfully attempted, and without any power in the premises, to extend the franchises until 1909 by ordinance; and that the Detroit Citizens’ Street-Railway Company claims to exercise its rights under the void ordinance of 1879, by assignment from the City Railway Company. The hill is in the nature of a bill
“(a) That the ordinance of March 29, 1892, which by its terms purported, to repeal so much of the ordinance of November 14, 1879, as extended the right of the Detroit Oity Railway Company to use the streets after May 9, 1893, may be declared to he null and void; (b) that the complainant may be enjoined from attempting to enforce the ordinance [of March 29, 1892] in any way, and from interfering in any way, or attempting to interfere in any way, with its rights to use and operate its street railways cn the streets and avenues mentioned in the several ordinances, up to the full period named and fixed by the ordinance of November 14,1879; (c) and for general relief.”
This answer was filed in the Wayne circuit court before the case was removed to this court, and the prayer was made in the answer under chancery rale No. 123 of the Michigan equity practice, which provides that—
“In any case in equity, when a defendant shall claim from the complainant any relief which, according to the established course and practice of courts of chancery, might be had by cross bill, such defendant shall he at liberty, by his answer, to present the facts upon which his equity rests, and to claim by such answer the benefit of a cross hill, and the court shall have power to give relief upon such answer to the same extent that it might have given had a cross bill been filed.”
No summons or subpoena is issued on this answer in the nature of a cross hill, but the complainant is required to answer or demur to the same without further process. When this cause was removed from the state court, therefore, the complainant was in court both on the hill and the cross bill. The issues as to the bill and answer were made up, and tbe complainant was in default as to the cross bill. We do not think that the equity rales of the federal courts require a reframing of the pleadings to conform to the practice that must have obtained had the suit been originally brought here. After an equity suit is brought in the United States court, subsequent proceedings are of course governed by the federal equity rales, but, on removal, the rights of parties are- exactly the same as when the case was taken from the state court, and are not to he changed except so far as is required by the fact that the equity and law jurisdictions of the federal courts are entirely distinct. This is a purely equitable cause, and no inconvenience is experi
The Washington Trust Company files no cross bill; and because it removed .the case here, and as against it, if sole defendant, this bill could be properly dismissed without prejudice, it is argued that the defendants the railway companies cannot object to dismissal, because they have no right to be here except with the Washington Trust Company. After the case was removed here, the rights of the parties remained exactly what they would have been in the state court; and, if the complainant could not have dismissed against the railway company there, it cannot here. The complainant cannot dismiss its bill against the trust company without also dismissing it against all the other defendants, and so long as they object to the dismissal, and prevent it, the Washington Trust Company must remain, because it is a necessary party to the litigation.
As counsel for the city have previously stated that they, except for the grounds already considered, are readv to argue the case on the merits, the hearing will proceed.