261 F. 714 | E.D. Mich. | 1919
This matter comes before the court on motion by defendant to set aside an order dismissing without prejudice the bill of complaint herein. The meritorious question involved is whether the plaintiff is entitled to have such bill dismissed upon payment of the costs incurred.
The bill was filed for the purpose of rescinding a certain sale of corporate stock by the plaintiff to the defendant, alleged to have been induced by means of false and fraudulent representations by defendant concerning the value of such stock. In her bill plaintiff offered to return the purchase price received by her, and prayed that defendant be ordered to-return to her said stock.
In his answer, the defendant denied all of the material allegations in the bill, and further alleged that he never purchased any shares of stock from said plaintiff, and that the records of the corporation whose stock was involved disclosed that said plaintiff was never the owner of any shares of its stock. No affirmative relief was prayed in said answer.
Thereafter the cause ivas referred to the standing master in chancery of this court to take proofs. Afterwards, and before the taking of any testimony, defendant filed a petition for leave to file an amended answer and cross-bill, in which he alleged, among other things, that the defendant purchased the corporate stock in question from a person to whom if had been previously sold by the plaintiff, as administratrix of the estate of her deceased husband, to whom it had
It is therefore unnecessary to consider the contention of plaintiff that the paper sought to be filed by defendant as a cross-bill was in reality such a pleading, or whether its allegations and prayer for relief related so closely to matters of defense rather than affirmative relief that even the seasonable filing thereof would not have deprived plaintiff of the right to the dismissal of her bill. Gilmore v. Bort, supra; United States v. Reese (C. C.) 166 Fed. 347.
The motion to set aside the order dismissing the bill must be denied, and an order entered in conformity with the terms of this opinion.