37 S.C. 269 | S.C. | 1892
Tbe opinion of tbe court was delivered by
Tbe single question presented by this appeal is, whether the Circuit Judge erred in sustaining the defendant’s plea in bar, and rendering judgment dismissing the complaint. For a proper understanding of this question, a brief statement will be necessary. It seems that on the 15th of October, 1879, the executors of one Hyatt commenced an action, in the Court of Common Pleas for Charleston County, in this State, against William McBurney and others, members of the firm of Hyatt, McBurney & Co., and the defendant herein, Caroline Carson, for the purpose of foreclosing a mortgage on certain real estate, known as “Dean Hall,” in which an order was granted, referring the case to Master Clancy, “to take testimony and report the same.” In pursuance of this order, the master, on the 27th of February, 1880, made his report of the testimony taken by' him, in which he stated that at the close of the plaintiff’s case, on the 16th of February, 1880, counsel for Mrs. Carson notified the master that he had, on that day, “filed a petition in the clerk’s office of the Court of Common Pleas for Charleston County, in behalf of Caroline Carson, the defendant, praying in her behalf the removal of this ease into the Hnited States Court, and that it was his purpose not to proceed with this cause before the master.” Thereupon plaintiff’s counsel moved that the master file his report of the testimony taken in the cause, as directed by the order of reference, which was done.
On the 10th of March, 1880, counsel for Mrs. Carson moved, in the Court of Common Pleas, to remove the cause in accordance with the petition, which motion was refused, and that court proceeded to hear and determine the case; and having rendered judgment for foreclosure, the case was carried by appeal to the Supreme Court of the State, where final judgment
Soon after the case was thus removed to the Circuit Court of the United States, the plaintiffs gave notice to the defendants, that they would move before his honor, Judge Bond, at chambers, for leave to enter an order of discontinuance, without prejudice, upon the payment of the costs incurred, to be taxed by the clerk of said court, and, in pursuance of this notice, Judge Bond, on the 10th of July, 1886, granted an order, upon the motion of the plaintiffs’ attorneys : “That, upon the payment of the costs incurred to date, this cause does stand dismissed, and that the clerk of this court is hereby directed to enter such discontinuance, upon payment of said costs. And it is further ordered, that the clerk of this court do tax the
On the 27th of July, 1886, the said cause having been thus discontinued, and at an end in the United States Circuit Court, the bond and mortgage, upon which said cause was based, was duly assigned to the plaintiff in the present case, who thereupon commenced the present action on the 11th of August, 1886, in the Court of Common Pleas for Berkeley County, in this State, against the said Caroline Carson, for the foreclosure of said mortgage. The defendant, Caroline Carson, having appeared, immediately filed a petition for the removal of this case to the Circuit Court of the United States, which court declined to take jurisdiction, and granted an order remanding the case to the State court. From this order, the defendant herein, Caroline Carson, appealed to the Supreme Court of the United States, which court rendered judgment affirming the said order, and remanding the case to the Court of Common Pleas for Berkeley County, when it was heard by his honor, Judge Izlar, who rendered judgment sustaining the plea in bar, set up in defendant’s answer, based upon the order of 10th of July, 1886, granted by Judge Bond at chambers, above copied; and dismissed the complaint with costs.
When, therefore, by the operation of the rule above stated, the case was, on the 16th of February, 1880, removed to the Circuit Court of the United States, it stood upon the docket of that court precisely in the condition in which it was wlieu it was taken out of the State court. No trial had been had, and the trial had not even commenced; and, according to our view, it was not then in a condition to be tried, for no report of the testimony had been made. But it is sufficient for our purpose to say that no trial had commenced. This is rendered absolutely certain by what is said by Waite, C. J., in delivering the opinion of the Supreme Court of the United States affirming the right of removal. See Carson v. Hyatt, 118 U. S., where, at page 289, we find the following language: “It remains only to consider whether the petition was presented before a trial was begun. The stipulation was not to send the case to the master for ‘trial,’ but ‘to take testimony and report the same.’ In its effect, this was nothing more than an agreement for the appointment of an examiner, before whom the testimony in the suit, which was in its nature a suit in equity, could be taken. The master had no authority to find either the facts or the law. His duty was to take and write out the testimony to be reported to the court for use on the trial when it should be begun.”
It will be observed, that the rule, as stated by Harper, Ch., supra, necessarily implies the right of a jdaintiff, after dismissing his bill, to bring a new action, and, what is more, “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 it is only where a defendant has shown himself entitled to a decree against the complainant, as in Bethia v. McKay, or against a co-defendant, and the dismissal would put him to the expense and trouble of bringing a new suit to recover what he has already shown himself entitled to. It is very obvious, therefore, that this case does not fall within the exception to the rule, as stated by Chan. Harper, for Mrs. Carson has certainly never shown herself entitled to a decree against the plaintiffs in the suit which was discontinued for any amount whatever, and all the prejudice that she can complain of is being harassed with another suit, which is expressly declared not to be sufficient to warrant a refusal of plaintiffs’ motion to discontinue. It seems to us, therefore, that the plaintiffs in the former action had a clear legal right to discontinue the same, without prejudice to their right, or that of their assignee, to bring a new action for the same pui^pose,.and that the order of Judge Bond cannot oxaerate as a bar to the present action.
So, in Lyon v. Perin, the decree relied upon as a bar was rendered by the court, not at chambers, and was in these terms: “This cause coming on for hearing, and being submitted to the court upon bill, answer, and replication, and having been duly considered, the court finds, adjudges, and decrees, that the equities are with the defendant; that the bill of complaint be 'dismissed, and that defendant recover its costs, to be taxed.” That decree, therefore, bore upon its face the evidence that it was rendered after a hearing and upon a consideration of the merits, which were formerly adjudged to be with the defendant. We can very well understand how such a decree would bar another action, unless it contained the words, “without prejudice,” or other equivalent words, for it shows clearly that the issues between the parties had been heard and finally determined; and hence there was no'room for any presumption arising from the absence of the words, “without prejudice.” That case, therefore, is wholly unlike the case now under consideration.
It is true, that, in Bigelow v. Winsor, 1 Gray, 299, Mr. Justice Gray, then Chief Justice of Massachusetts, did say : “Sometimes a party plaintiff in equity, who, because he is not prepared with his proofs, or for other reasons, desires not to go into a hearing, but rather to have his bill dismissed in the nature of a discontinuance or non-suit in an action at law, may be allowed to do so; but we believe the uniform practice in
Our own case of Dunsford v. Brown, 23 S. C., 328, is also relied upon; but that case is clearly not in point, for it will be seen, by reference to the order disposing of the petition for rehearing, that, in the decree, relied upon as a bar, the whole merits had been considered and determined. See Dunsford v. Brown, 19 S. C., 570-571. As was said by Kent, Ch., in reference to the case in which the language was used, and which, we think, is applicable to the case now under consideration : “The merits of the former case were never discussed, and no opinion of the court has ever been expressed upon them. It is, therefore, not a case within the rule rendering a decree a bar to a new suit. The ground of this defence by plea is, that the matter has already been decided, and there has been no decision on the matter.” Rosse v. Rust, 4 Johns. Ch., 300, where the case of Brandlyn v. Ord, 1 Atk., 571, is cited as containing the following language of Lord Hardwicke: ‘ ‘That, where the defendant pleads a former suit, he must show it was a res judicata or absolute determination of the court, that the plaintiff had no title. A bill, dropped for want of prosecution, is not to be pleaded as a decree of dismission in bar to another bill.” See, also, Mitf. Eq. Pl., 238 ; Story Eq. Pl., §793.
See Latimer v. Sullivan, ante, 120.