63 Tenn. 539 | Tenn. | 1874
delivered the opinion of the Court.
In this case an affidavit is presented by J. G. Mann, one of the complainants, stating matter of amendment to the bill, and asking that the case be remanded to the Court below for such amendment to be made, or that the bill be dismissed without prejudice.
The matter alleged in the affidavit is, substantially, that after the first notice to Long to come to Memphis and withdraw his deposits, and his visit fo Memphis and return home without doing so, that another letter demanding or requiring that he should come down and withdraw his deposits was sent to him. That in this letter he was distinctly threatened with being reported to the military authorities, and arrested if he failed to comply; and that after he went to Memphis the second time he was again threatened with arrest if he did not accept the Confederate notes. It is further stated, however, that this letter is lost or mislaid, but claimed that its contents can be proven by credible witnesses.
The affidavit is sworn to by J. G. Mann as being true “to the best of his knowledge, information and belief.”
There has been a class of cases where this Court has remanded the cause to the inferior Court for amendment, in order that the justice of the case might be reached. In all these cases, however, it appeared
It is obvious the principle of these cases ■ does not aid the applicants in the case before us. By §3170 of the Code, however, we have the most liberal rule of practice to be found on this subject. It is' as follows: “The Court shall also, in all cases where, in its opinion, complete justice cannot be had, by reason of some defect in the record, want of proper parties, or oversight without culpable negligence, remand the case to the Court below for further proceedings, with proper directions to effectuate the object of the order, and upon such terms as may be deemed right.” But the parties fail to bring themselves within these provisions.
The Court cannot see that complete justice has not been done in this case from the record before us, and it is the fair construction of the Statute, we may add, that the Court is' to form its opinion from the record
As to the application to dismiss without prejudice, we have said, this is not a matter of course, but is a question of sound judicial discretion, to be exercised in view of the facts made out in the case before the Court.
We see nothing in this case as a basis for the exercise of this discretion. It is proper that litigation should end somewhere, and within some reasonable time, and under the facts found in this reeord, we can see no reason why this case should be so dismissed, as to allow it to run another round of perhaps five or six years on a mere experiment, such as another suit would probably be. We can see great danger of gross injustice to other. parties in such a course, and it is, therefore, refused.