89 Ind. 95 | Ind. | 1883
The complaint in this ease, asking for the
It is averred further, that the Willsons when they accepted the conveyances knew of the nature of the conveyance to Cravens and his agreement to reconvey to Kitts.
Appellant alleges that she is the owner of the undivided one-third of the land as the widow of Kitts, asks for a partition and a quieting of the title.
At the April term, 1880, appellees Willsons appeared and filed a sworn application to have the proceedings stayed until the cost in a former action should be paid by appellant, etc.
The statements of the application are substantially as follows: In 1874, appellant commenced an action against Wm. D. Willson and said Cravens for the identical cause of action set up in the complaint herein. While that action was pend
To this application appellant filed a sworn answer, in which she admits that the cause of action in the two cases is the same, but states that the defendants in, the former action were Wm. D. Willson and said Cravens. It is stated further that in that action she recovered a judgment, from which Cravens appealed to the Supreme Court, where it was reversed upon a technical point, and not upon the merits of the case. Upon the return of the cause, in February, 1880, the administrator of Cravens was substituted, and the trial proceeded with. Upon the trial of the cause she learned for the first time that appellee Thomas E. Willson was claiming to be the owner of the one-fourth or one-half of the land, under a deed from Wm. D. Willson, which fact was unknown to her at the time of the commencement of the former action against Cravens and Wm. D. Willson. Her counsel advised her that a recovery would be doubtful on account of Thos. E. Willson claiming to be a part owner of the land, and that she had better dismiss, and commence a new action, making him a party defendant, which she did. It is stated further that she is the legal owner of the one-third of the land, and has a meritorious cause of action, which she can establish by proof; that when the Willsons purchased they knew of her legal and
The record states that the cause was submitted to the court on the application and answer, and a record of the former action, including the pleadings in the case and the record- of the dismissal. The court made a final order staying proceedings until the payment of the $244 costs adjudged against appellant upon the dismissal of her former action, and that appellant be perpetually enjoined from further prosecuting her action if said costs be not paid within six months, she having the right, in the meantime, to dismiss her action. The correctness of this order is the question presented for decision, upon this appeal.
The parties defendants in the former action were the appellee herein, Wm. D. Willson, and James H. Cravens, and after his death his administrator and the children of David H. Kitts. In the present action the parties defendants are the same except that the administrator of Cravens is omitted, and Thomas E. Willson added.
This difference in parties is not such, as of itself, will prevent the application of the rule staying proceedings until the payment of the costs in the former action. Kentish v. Tatham, 6 Hill, 372; Flemming v. Pennsylvania Ins. Co., 4 Pa. St. 475 Sooy v. McKean, 4 Halst. 86; Jackson v. Carpenter, 3 Cow. 22; Jackson v. Edwards, 1 Cow. 138.
The order staying proceedings until the payment of costs in a former action is not to be made in every case as a matter of' right. It is a matter of sound discretion, to be exercised by the courts under the facts and circumstances of each case. Henderson v. Griffin, 5 Peters, 151.
The order when granted, as shown by the adjudicated cases,,
In the case in hearing we think that the showing of appellant, in her answer to the application, is sufficient to remove the presumption that the prosecution on her part is vexatious- or in bad faith. She swears that she is the owner of one-third of the land; that she has a meritorious cause of action which she can support by proof; that she is prosecuting the ease for the sole purpose of securing her rights in the land,, and with no evil purpose; and, further, that the former case was dismissed and the present- one commenced under the advice of her counsel, on their statement to her that on account of claims set up by appellee Thomas E. Willson her recovery in the former action was rendered doubtful. She states further that after that action was on trial she learned for the first time of the claim thus set up, and was ignorant of it when the action was commenced.
Counsel for appellee contend that it does not appear from appellant’s answer that appellee Thomas E. Willson became an owner of a portion of the land before the former action was commenced; that if he became such owner after the- action was commenced it was not necessary that he should be made a defendant, and that, hence, there was no sufficient reason for the dismissal. The averment is not as specific as might be required in a pleading tendering an issue upon the
The purpose of the answer was to show simply that the prosecution of the present action is not vexatious. For this purpose it may be sufficient, although it may not have been absolutely necessary, to dismiss the former action. The spirit of our legislation would not sanction such strictness in a matter of this kind. While the courts would not tolerate a Vexatious litigation, yet the largest latitude will be allowed to the poor, who are unable to pay costs, and are pursuing their rights with an honest purpose. That the costs of the former action are not paid, may be a hardship upon appellees in this case, but it is no greater than often occurs when one of the litigating parties is not good for costs.
Counsel for appellee make a stronger case in their brief than is made by the record. Our decision must be made upon the record, and not upon the briefs.
Had the case been one in which the court might and should have made an order staying proceedings until the payment of costs, yet there would have been manifest error in the order made perpetually enjoining appellant from pursuing her supposed rights in a court of justice. We know of no reason why the court might not in a proper case fix a reasonable time within which the costs should be paid; but the penalty for a failure to pay within that time should be a dismissal of the action and not a perpetual injunction. See Kerr v. Davis, 7 Paige, 53.
For the reasons above stated the judgment of the court below is reversed, at the costs of appellees.