67 F. 31 | U.S. Circuit Court for the District of South Carolina | 1895
This case comes up on a question certified by the special master. The complainant filed a bill against the defendants, praying an injunction. An injunction bond was required, and was executed. A temporary injunction having been granted, it was dissolved on 5 th April, 1892. Thereupon the defendants prayed that the injunction bond be delivered to their solicitor, so that the same could be put in suit. This prayer was refused, the court holding that it was the proper judge of the question whether any damage was sustained, and, if so, its amount. An order was filed directing “that the defendants produce before the master such evidence of damage as they may claim, with leave to complainants to reply thereto if they be so advised, and that the testimony so taken be reported to the court; that J. E. Hagood be appointed special master in this behalf.” This order was dated and filed 3.7th June, 1892. The defendants took no action under this order until April 1, 1895. Nor were any steps taken by complainant, who, indeed, was only required to reply to evidence of the defendants. A reference having been called at the instance of the defendants for this last-named day, counsel for complainant objected to going on with the reference, as the three months allowed under equity rule 69 had long since expired, and no further time can be allowed without an order of the court. The special master asks instructions as to the validity of this objection. The counsel for complainant now press their objection, and say further that it would be inequitable to indulge the defendants by extending tbe time for taking testimony. Great stress is laid upon the provisions of rule 69, in which, in the absence of special direction, three months, and no more, are allowed within which all testimony must be taken; and on the cases under that rule,—Ingle v. Jones, 9 Wall. 486; Fischer v. Hayes, 6
Rule 74: Whenever any reference of any matter is made to a master to examino and report thereon, the party at whoso instance or for whose benefit the reference is made shall cause the same to bo presented to the master for a hearing on or before the next rule day succeeding the time when the reference was made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference.
This rule differs materially from rule 69. It compels immediate action on the behalf of the moving party, fixes the next rule day as the time wilhin which he must begin, and declares the method of taking advantage of the laches by his adversary.
Two points may be noted here. The reference in the case at bar was by the' court suo motu for the purpose of enabling it to decide upon the merits of an application before it. That decision is in abeyance. Ho opinion was expressed upon it, and none could be until the information sought could be obtained. The decision is still pending. The need for the information exists. Again, the rule makes it the duty of the party at whose instance and for whose benefit the reference is made to move in the matter. In the case at bar the court, acting for both parties, and in order to protect and secure the right of each, ordered the reference. But, assuming that it was the duty of the defendant to move, must he be deprived of all opportunity of making his case, or is not the
“Under that act, a party defendant might have had the bill dismissed for want of prosecution, unless for satisfactory cause shown to the contrary; or it would have been in the power of the court, of its own motion, and after the cause was docketed, if the parties delayed their proceeding, to strike off the cause, or make such order as would be a final decision; or it might refuse to proceed further against the defendant, or might set aside a decree improvidently entered against him. But these directions of the act should be, and have been always, construed to subserve the purposes of justice, and not to take advantage of inadvertence or misapprehension. As is remarked by Chancellor Harper, if such motion be not made by the party defendant, being in court, this may be held evidence of consent on his part; and it may be added that, if no order be entered by the court, it may be inferred that the court thought that the delay was reasonable.”
If the analogy of equity practice be examined, it will be seen how chary the- court is in suppressing or defeating testimony. 1 Daniell, Ch. Prac. p. 807, shows that bills may be dismissed for want of prosecution, and parties turned out of court. But in bills to perpetuate testimony a different and more lenient practice prevails. The bill is not dismissed, and further time is always given the complainant within which he is peremptorily required to complete his examination. He cites Beavan v. Carpenter, 11 Sim. 22, in which no replication was filed,-and a motion was made to dismiss the bill. Motion refused, and leave granted to file replication, and for further time to take testimony. So in Wright v. Tatham, 2 Sim. 459, the vice chancellor says: “A motion to dismiss a bill to perpetuate testimony for want of prosecution is irregular. The proper application is that plaintiff may proceed within a given time, or may pay the defendant his costs.” That course was adopted in Bonham v. Longman, quoted in a note to the case.
It would seem that the peremptory requirements of rule 69 do not apply to rule 74. The former relates to the actions of the parties, and controls their attitude before the court The latter is intended for the information of the court itself, to enable it to carry out its conclusion already reached upon the equities of the case, and to do complete and substantial justice. The South Carolina practice is controlled by a state statute, and cannot affect this court. The case is sent back to the special master, with instructions to go on with the references, but with leave to the complainant, in case the delay has operated in any way to injure it or change its relations, to produce testimony to that effect.