247 F. 452 | 9th Cir. | 1918
(after stating the facts as above). The substance of the errors assigned by the defendants is: That by considering the affidavits upon the motion for preliminary injunction, and by setting the case down. for trial, the District Court determined the cause, and made a “decretal order” sustaining the right of the defendants to continue their business until the further order, of the court, or the final determination of the cause, and that the defendants thereby acquired the right to have the matter so continued, and to have it determined in the same District Court without being subjected to litigation in some other or different court as threatened by the defendant.
“Prejudice to the defendant, then, is a factor sufficient to defeat the right of the plaintiff to dismiss. If it appears that the dismissal of the bill would deprive the defendant of some litigablo right that he is entitled to enforce in that suit, or perhaps, even, if it appears that by the dismissal' he would be subjected to some disadvantage or deprived of some equity, the leave to dismiss will bo refused. It will be noted, in this connection, that the mere possibility that the defendant may be harassed by another litigation directed to the same object is not enough to disentitle the plaintiff to dismiss. The prejudice that the law contemplates as sufficient to authorize a denial of the plaintiff’s motion to dismiss must be ‘some plain, legal prejudice other than a mere prosimet of future litigation rendered possible by the dismissal of the bill.’ But if, beyond the incidental annoyances of a second litigation upon the same subject-matter, such action would be manifestly prejudicial to the*454 defendant, leave to dismiss will not be granted. On the question as to what will constitute a sufficient prejudice to the defendant to justify a refusal of leave to dismiss, the courts very properly exercise a considerable latitude of judicial discretion; and except in a case where there is an obvious violation of a fundamental rule or an abuse of the discretion of the court, the action of the Circuit Court in granting or refusing leave to dismiss will not be reversed.”
It does not seem to be consistent with principles of equity to say that merely because an order denying injunction pendente lite has been made, all discretion in respect to the allowance of motion for dismissal by plaintiff is removed, and therefore that the court may not inquire into the question whether or not the dismissal would constitute a substantial prejudice to defendant. In Pullman’s Palace Car Co. v. Central Transportation Co., 171 U. S. 138, 18 Sup. Ct. 808, 43 L. Ed. 108, the Supreme Court expressly held that the prejudice to the defendant which would authorize a denial of a motion to discontinue must be other than the mere prospect of future litigation, rendered possible by the discontinuance. Upon the question of discretion, it was said:
“Unless there is an obvious violation of a fundamental rule of a court of equity or an abuse of the discretion of the court, a decision of a motion for leave to discontinue will not be reviewed here.”
In Penn Phonograph Co. v. Columbia Phonograph Co., 132 Fed. 808, 66 C. C. A. 127, on an appeal from a decree dismissing a bill on' motion of the plaintiff, the Court of Appeals for the Third Circuit found no abuse of legal discretion in making the decree complained of_and said:
“No testimony had been taken in the case, and there had been no hearing or decree upon the merits. The hearing of the motion for a preliminary injunction upon opposing ex parte affidavits and the denial of the motion did not bar the dismissal of the bill by permission of the court in the exercise of its sound discretion. Nor was leave to dismiss precluded because the defendant was called on to answer the bill under oath, and did so. The appellant, we think, was deprived of no substantial right by the dismissal. We cannot agree that future litigation thus made possible amounted to legal prejudice.”
That there is discretionary power up to the time that evidence may be heard upon the merits is held in the following cases: Young v. Samuels & Brothers, 232 Fed. 784, where Judge Brown, in the District Court for the District of Rhode Island, has collated and considered many of the decisions bearing upon the point; Houghton v. Whitin Machine Works (C. C.) 160 Fed. 227; Staude Manufacturing Co. v. Labombarde et al. (D. C.) 229 Fed. 1004. See, also, Bates, Federal Equity Procedure, pp. 709, 710; Curtis v. Lloyd, 4 My. & Cr. 194; Thomson-Houston E. Co. v. Holland (C. C.) 160 Fed. 768; Ebner v. Zimmerly, 118 Fed. 118, 55 C. C. A. 430.
In C. & A. R. R. Co. v. Union Rolling Mill Co., 109 U. S. 702, 3 Sup. Ct. 594, 27 L. Ed. 1081, the Supreme Court, speaking through Justice Woods, after conceding that as a general rule, a complainant could at any time upon the payment of costs, dismiss his bill, said that the rule was subject to exception, namely:
“That after a decree, whether final or interlocutory, has been made, by which the rights of a party defendant have been adjudicated, or such pro*455 codlings have been taken as entitled the defendant to a decree, the complainant will not be allowed to dismiss his bill without the consent of the defendant.”
The court cites Daniel’s Chancery Practice, pp. 793, 794, where it was laid down that:
“After a decree or decretal order the court will not allow a plaintiff to dismiss his own bill, unless upon consent, for all parties are interested in a decree, and any party may take such steps as he may be advised to have the effect of it.”
We do not understand that the Supreme Court meant to decide that where injunction pendente lite has been denied, and there has been no testimony heard upon the merits of the case, the order denying such injunction necessarily brings the case within the settled exception to the general rule. The case which was before the court did not call for decision to such effect; and in the later case of Pullman’s Car Co. v. Central Transportation Co., supra, Justice Peckham, although he referred to C. & A. R. R. Co. v. Union Rolling Mill Co., supra, in stating the general proposition, was careful, it would seem, to avoid language which would deny to a plaintiff the right to dismiss his bill at any time before the hearing, except where, “beyond the incidental annoyance of a second litigation upon the subject-matter, such action would be manifestly prejudicial to the defendant.” Carrington v. Holly (1755) 1 Dickens, 281.
Holding that the order made was within the discretion of the court, and that no abuse is shown, the decree is affirmed.