State ex rel. Kane v. Larrabee, 3 Chand. 179

State ex rel. Kane v. Larrabee

3 Chand. 179 | Wis. | 1851

WhitoN, J.

The return of the judge to the alternative writ of mandamus shows, that on the 18th day of April, 1851, at a term of the circuit court for Washington county, the case of Calvin W. Howe et al. v. George Cogswell and Charles I. Kane, was called in its order on the calendar; that, upon the failure of the complainants to appear, or any one of them, E. Gr. Ryan, *168Esq., of counsel for said Kane, moved for a decree dismissing the bill of complaint in said cause, for want of prosecution;» that the said judge directed the said E. Gr. Ryan, Esq., to draw up such decree; that the said E. Gr. Ryan, Esq., drew up a decree, which was handed to the judge, and after being altered so as to make it a dismissal of the bill as to the defendant Kane only, was signed by the judge. It further appears from said return, that on the next day the said decree was altered by inserting therein the words “ without prejudice.” It further appears by said return, that this alteration of the decree was made by the judge in open court; that he called the attention of the clerk of the court to'the alteration, and made a memorandum at the bottom of said decree, showing where the alteration was made, and the nature and extent of the alteration. It further appears by the return, that this alteration was made without any notice to the parties, or either of them, but was made by the judge upon his own suggestion, to correct whát he supposed was a clerical error of the counsel who drew up the decree, and with no other intention than to make the decree what the judge in the first instance intended it should be.

Admitting that the judge had no power to alter the decree after it had been signed by him, without notice to the parties, the question which presents itself to the court is, whether any change was made in the legal effect of the decree by the alteration.

For, if the legal rights of the relator, Kane, were not affected by the alteration ; if the decree is the same now, in substance and effect, that it was before the alteration was made, a peremptory mandamus will not be awarded. All the authorities concur in sustaining the position, that a mandamus will not be granted to a relator for his relief, except where he has a specific legal right to be affected by it. Marbury v. Madison, 1 Cranch., 59; Stale v. The Justices of Moore, 2 Wend., 430; The People v. The Trustees of Brooklyn, 1 Wend., 318; Hull v. Supervisors of Oneida, 19 Johns., 260. It is a proceeding to correct an error *169by which the legal rights of the relator have been affected, and can only be granted where a legal right exists.

Were then, the legal rights of the relator, Wane, affected by the alteration of the decree ? If we were to grant the peremptory mandamus, and compel the judge to strike from the decree the words “ without prejudice,” would the legal rights of Kane be changed, or in any way affected ? We have arrived at the conclusion, that the alteration made in the decree by the judge did not at all change its legal character or effect, and that consequently, Kane has no legal right involved in this application.

The decree can have no other effect than the ordinary one, dismissing a bill for want "of prosecution. No examination was made of the matters stated in the bill, and no adjudication, was had upon them. In such a case it is clear that a decree dismissing a bill would be no bar to another bill setting up the same matters contained in the bill dismissed. To make the dismissal of a bill a bar to another suit for the same cause, it must appear that the dismissal was made after a hearing, and an examination into its merits. Story’s Eq. Plead., 856, 798; Rosse v. Rust, 4 Johns. Ch., 300; Neafie v. Neafie, 7 Johns. Ch., 1.

If this proposition is correct, the legal effect of this decree is the same, whether the words “without prejudice” are contained in it, or not, as these words only modify a decree dismissing a bill, which without them, would be a bar to another suit for the same cause.

It was contended at the argument, that our statute (R. S. ch. 84, § 32) gave an effect to the decree which we are considering, different from that which properly belongs to an order dismissing a bill for want of prosecution. The section of the statute referred to is as follows: “ If the complainant shall not attend at the time appointed for the hearing of the cause, bis bill shall be dismissed with costs.” The statute is silent as to the effect of the dismissal of the bill, and we cannot give it any greater effect, than an ordinary dismissal for want of pros*170ecution; for in neither case, are the merits of the bill at all drawn in question.

We are of opinion that the answer of the judge is sufficient, and that the demurrer must be overruled.

Demurrer overruled accordingly.