Picquet v. Swan

19 F. Cas. 617 | U.S. Circuit Court for the District of Massachusetts | 1830

STORY, Circuit Justice.

There are two motions before the court; one on behalf of all the defendants, except Swan, to dismiss the bill on account of its non-prosecution, and the inability of the plaintiff to procure an appearance and answer from Swan. The other on behalf of the plaintiff, for further time to procure the appearance and answer of Swan, grounded upon the affidavit and papers accompanying the motion. Upon the actual structure of the bill it is very clear, that Swan is a necessary party, and that no relief can be had against the other defendants until the debt is established against him. The whole frame of the bill points to this conclusion, and the process and proceedings to compel Swan to come in all show, that he is deemed an indispensable party, or in the sense of a court of chancery, an active, and not merely a passive party. The importance of having the person before the court, whose interests are to be bound by an account or debt, is very forcibly illustrated by the case of Fell v. Brown, 2 Brown, Ch. 276. It is not, however, necessary at this time to enter into any consideration of the question of parties, since the plaintiff, by making Swan a party, is bound to proceed against him as such, or to dismiss him wholly from the bill. The general principle is perfectly well settled, that the defendant may have the bill of the plaintiff dismissed for non-prosecution, If the plaintiff does not proceed therein within a reasonable time. In England, if the plaintiff suffer three terms to elapse after answer filed, without taking any steps in the cause, the defendant may move to have the bill dismissed for want of prosecution. And the plaintiff, upon such an application, can give no other answer than an undertaking to speed the cause. If, after such an undertaking, .another term expires without the plaintiff’s taking any steps in the cause, the defendant is then entitled again to move for a dismission, which is granted of course, unless the plaintiff enters into a special undertaking. See Degraves v. Dane, 15 Ves. 291; Bligh v. -, 13 Ves. 455; Naylor v. Taylor, 16 Ves. 127; Puller v. Willis, 3 Ves. & B. 1. This practice seems wholly inapplicable to the circuit courts of the United States, as it would operate the most vexatious and unjustifiable delays, considering the great intervals between the terms of our courts. The practice, however, such as it is, looks to the case, where a sole defendant answering insists upon the right to dismiss.

[NOTE. James Swan died in 1831. after which a judgment was obtained against his administrator. Case unreported. Later a ^motion for a new trial was overruled. Case No. 11,-131.]

The present is a case, where co-defendants, having answered, insist upon the right to dismiss the bill on account of the non-prosecution of the same against Swan. It would be an intolerable grievance, if co-defendants could not insist upon such a right; for it might otherwise happen, that the cause could not be brought to a hearing against them alone; and thus they might be held in court for an indefinite period, perhaps during their whole lives, and very valuable property in their hands be incapable of any safe alienation. No court of justice, and least of all, a court of equity, could be presumed to suffer its practice to become the instrument of such gross mischief. We accordingly find it very clearly established, that a co-defendant possesses such a right. Anon., 2 Atk. 604; Anon., 9 Ves. 512. That right, however, in England, seems governed very nearly', if not altogether, by the same rules, 'which apply to the case of a single defendant. It may not be fit for this court to follow the English practice without modification; but the spirit of that practice clearly indicates, that where there has been no affected delay, the rule to dismiss ought not to be peremptory in the first instance. Time ought to be given to the plaintiff to relieve the cause, if possible, from the difficulty of the non-appearance of the other defendant In the present ease the plaintiff has been guilty of no laches. He has used all commendable diligence to procure the appearance of Swan. He has sent a commission to give him notice of the suit, and to take his answer. Swan has, indeed, declined at present to answer. And if the case stood solely upon the commissioner’s return, there would be no use in any' farther delay; and the bill might be at once dismissed. But the affidavit of the plaintiff and the other papers accompanying his motion, do not demonstrate a determination on the part of Swan never to appear, and make answer to the suit On the contrary, he expresses a readiness to do so at a future time.

It is true, that under the limited authority confided to the circuit courts of the United States, Swan cannot be compelled to appear and answer the present bill. I do not now go into a consideration of this subject, having had occasion to express my opinion at large, in the recent ease of Picquet v. Swan [Case No. 11,134]. But Swan may appear, if he chooses, and answer the bill; and if he should so do, there is not, as I conceive, any want of jurisdiction in the court to entertain the cause. See Harrison v. Rowan [Case No. 6,140]; Logan v. Patrick, 5 Cranch [9 U. S.] 288; Pollard v. Dwight, 4 Cranch [8 U. S.] 421. I am fully aware of the extreme inconveniences resulting to the co-defendants from this protracted litigation; but the court is bound to guard itself against any undue influence, which such a circumstance is well calculated to produce. This question must be decided upon principles applicable to all cases of a like nature. Unless Swan should appear, there must be a dismissal of the bill. That is the common course, when persons, who are necessary parties, refuse to appear, and the court has no power to reach them by its process, and compel them to become parties. It was the ultimate fate of the case of Russell v. Clarke’s Ex’rs, 7 Cranch [11 U. S.] 69, after it was remanded to the circuit court.

What the court propose to do under all the circumstances of this case; is, to pass an order giving farther time to the plaintiff to procure the appearance and answer of Swan, until the rule day' in May next; and in case no such appearance and answer shall be filed on or before that time, then, that the plaintiff's bill do stand dismissed without prejudice to the merits, and that the defendants, except Swan, do recover their costs.