63 F. 881 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1894
The bill is filed under 3Sfo. 56 of the equity rules. Is there a suit pending? This is the only question. I think there is not. First, because under the circumstances the court’s act in ordering a dismissal of the bill should be treated as a final disposition of it; and if not, then second, because the plaintiff abandoned the suit.
After the lapse of such a period of inaction the plaintiff should be regarded as having treated the court’s order as final—the informal decree as a formal one. In effect the court ordered the bill dismissed, as the record shows; the formal decree would have signified no more. If the plaintiff desired to proceed further it was his duty to put the decree in form; it was not the duty of the court or its clerk. ' The defendant needed nothing more unless he chose to proceed for costs—which the record indicates would have been fruitless.
Besides, the circumstances justify, and require, a conclusion that the plaintiff abandoned the suit. How else can his conduct be accounted for? The lapse of such a period of inaction, unexplained, would of itself in any case be sufficient evidence of abandonment. Such inaction for a fourth the time in ordinary cases justifies dismissal of bills for want of prosecution. Under the circumstances of this case the conclusion of abandonment is unavoidable. An issue was raised testimony taken, and judgment rendered. The purpose of the suit was accomplished—though the result may have been disappointing. The plaintiff acquiesced for twelve years. True he communicated with the clerk about an appeal and learned that the decree was not in form. Instead of putting it in form, as was his duty if he desired further proceedings, he rested ten years longer and now asks the court to treat the suit as pending, that he may renew the litigation. I repeat the conclusion that he acquiesced in the judgment pronounced and abandoned the suit, is unavoidable. It would not be more so if he had rested ten years longer.
Aside from' these considerations, however, the delay is fatal. After such a period of inaction the revival of the suit and renewal of the litigation would be grossly inequitable.
The motion is sustained.
