286 F. 653 | 5th Cir. | 1923
F. C. Martin, a citizen of Mississippi, filed his bill in equity in the chancery court of Pearl River county, Miss., against Edward Hines, R. R. Barth, and C. F. Wiehe, trustees of the Edward Hines Yellow Pine Trustees, a trust estate, said persons being citizens of Illinois, and against certain other persons, which said suit was by said Edward Hines and others, trustees, etc., as aforesaid, removed into the United States District Court for the Southern District of Mississippi, upon the ground that there was a separable controversy therein between said Martin and said trustees.
Said bill of complaint alleged that the said plaintiff held title to certain lands, therein described, and the timber thereon; that the same had been patented by the United States of America to the state of Mississippi, and by the state of Mississippi patented to plaintiffs predecessor in title; that the officials of said state had undertaken to convey the same to the Pearl River Improvement & Navigation Company, and that the defendants claimed title from said Pearl River Improvement & Navigation Company; that the conveyance to said Pearl River Improvement & Navigation Company was without authority of law and void.
The defendants Hines and others, trustees as aforesaid, answered said bill of complaint, responding to the several allegations therein made, and asserting that they had a good and sufficient title through the several conveyances in said answer set up from said Pearl River Improvement & Navigation Company, and also asserting that they and their predecessors in title had been in the actual, visible, notorious, continuous, exclusive, adverse, and hostile possession of said lands and all of them under color of title for more than 10 years, and had exercised such possession adversely to plaintiff and his predecessors in title for more than 30 years, which said adverse possession had been continuous and unbroken for said period of time. They concluded said answer by denying that the plaintiff was entitled to any relief whatever and praying that having fully answered they might be dismissed with their reasonable costs.
Plaintiff moved the court for leave to suffer a nonsuit as to the said • Edward Hines, R. R. Barth, and C. F. Wiehe, trustees as aforesaid, and that said suit be dismissed without prejudice to said plaintiff. No notice appears to have been given of this motion, but an order granting the same was signed by the judge of said District Court on December 31, 1921.
On February 22, 1922, said defendant trustees filed a motion praying to be permitted to amend their answer theretofore filed by adding at the conclusion thereof the following words:
“And said respondents further pray that the said bill of complaint against them be dismissed, and that they, the said defendants, be decreed to be the sole, legal, and equitable owners of the land described therein.”
On February 23d a further decree was entered in said case reciting that, the cause coming on to be heard on the motion of complainant to dismiss the same without prejudice, and the court having heard and considered the same, it was ordered, adjudged, and decreed that the same be, and the same was thereby, dismissed without prejudice.
We do not think there was any abuse of discretion on the part of the court below in refusing the defendants the right to amend their answer in the manner proposed, as decreed by the order of March 10, 1922. Recognizing fully that a cross-bill in equity is neither needed nor permitted in a suit in equity in a federal court, and that all affirmative relief necessary to be sought by a cross-bill under the former rules of equity practice can now be obtained through an answer in equity framed for that purpose, we do not think that the answer in this case, as filed, was in any sense an answer in the nature of a cross-bill. The matter set up therein was strictly responsive to the allegations of the chain of title under which plaintiff claimed, and set up in defense of plaintiff’s claim the claim of title under which defendants defended, and through which they claimed a superior right to that alleged by the plaintiff. It was in every particular an answer strictly defensive and responsive to the bill of complaint It concluded with a denial, under the allegations of the answer, of the plaintiff’s right to the relief sought, with the single prayer that defendants be dismissed with their reasonable costs.
We do not think that the proposed amendment to the answer would have made it the equivalent of a cross-bill. The only prayer is that the bill of complaint against them be dismissed, and that they, the said defendants, be decreed to be the sole, legal and equitable owners of the land described therein. This would have been the legal consequence of a decree dismissing the bill upon the merits, and such a decree thereafter could have been pleaded as establishing the title of defendants over the plaintiff in any subsequent litigation respecting said land, as fully as a decree expressly stating that defendants were the legal and equitable owners.
A cross-bill seeking no discovery and setting up no defense which might not as well have been taken by answer will be dismissed, with costs. American & General Mortg. & Inv. Corp. v. Marquam (C. C.) 62 Fed. 960, 962; 2 Daniell, Ch. Pr. 1552, note; 1 Whitehouse, Eq. Pr. p. 270.
But the question of allowing such amendments is one in the discretion of the court, and where the plaintiff at a time when the answer contained no suggestion seeking affirmative relief of any sort procured an order of the court dismissing his bill without prejudice, even if such order was liable to be set aside because procured without previous notice of such purpose to the defendants, the order was not void. It evidenced a purpose of plaintiff to avail himself of what has been recognized generally to be his right, except under special circumstances. Pullman’s Car Co. v. Transportation Co., 171 U. S. 138, 145, 18 Sup. Ct. 808, 43 L. Ed. 108.
The defendants did not show that they would have been deprived of any right against the plaintiff by the dismissal of the case, but only that they might be subjected to the annoyance of another suit:
If the plaintiff should again sue these defendants in the state court, they could as well remove the case to the federal court as they did in the present case.
' [8] We do not think that the irregularity of want of previous notice to the defendants, or their solicitors, of a motion to dismiss said cause without prejudice would .call for a reversal of such order. While the record does not show that any motion was made to vacate these orders, it is recited in-the brief of appellants that such motion was made and denied by the court, which amounted to a reaffirmation of these orders, after notice. As no reason exists why the case should not have been dismissed on plaintiff’s motion without prejudice at the time it was done, the decree should not now he set aside. 40 Stat at L. c. 48, p. 1181 (Comp. St. Ann. Supp. 1919, § 1246); Southern Oil Corp. v. Waggoner (C. C. A.) 276 Fed. 487, 490.
The judgment of the District Court is affirmed.
