199 F. 404 | 9th Cir. | 1912
The launch Bainbridge, owned by the Sound Motor Company, a corporation, was operated between Seattle and Kingston during a portion of the year 1907, all of 1908 and 1909, and in 1910 until about the end of March. In March she was traded for the Columbia. Thereafter she was purchased by the Inland Navigation Company, the appellee herein. In February, 1911, the appellants Zugehoer and Johannson, brought a libel against the launch, claiming liens thereon for services. Zugehoer
The appellants had the books of the Sound Motor Company in court; but, instead 'of offering them in evidence, their proctor produced and offered a statement purporting to he taken from the books. To this the appellee objected, and the court excluded the statement, saying:
“The most that can be claimed is that Exhibit A was made up from the hooks, and it is therefore but secondary evidence of the contents of unidentified books.”
So far it is clear that no error was committed by the court below. The appellants were stockholders of the Sound Motor Company at the time when their services were alleged to-have been rendered; Zugehoer owning one-eighth of the stock, and Johann-son owning a little more than one-fourth thereof, and occupying the office of treasurer of the corporation. Instead of bringing their libel at the time when the boat was traded for the Columbia, the appellants waited nearly a year, and until after the boat had been sold to the appellee, a corporation which disclaims all knowledge of any lien or claim of lien for wages when it purchased the launch. It behooved the libelants to state clearly and correctly their claims in their libel and thereafter to present to the court def
It is. to be observed that it is. not stated in the affidavits that, if the case is reopened, any books of original entry will be offered to the court, or that any books showing the condition of the accounts of the appellants with the Sound Motor Company will be produced, or that there are any such books. All that is to be offered is a book’or books containing, not original entries, but entries posted thérein, of checks made by the company to the order of the appellants. It is not claimed that that statement of checks so issued and paid covers all payments made, or that the books contain a full statement of the amounts paid. There is no showing that the evidence so sought to be introduced would have been of any value as proof of the account between the libelants and the company. No proper showing was made, therefore, for reopening the case.
“Let a decree be entered, dismissing tbe suit, with costs.”
On the 'following day the appellants filed a motion to dismiss without prejudice.' The denial of that motion is assigned as error. “Except where the right to a dismissal or nonsuit is absolute, the court is vested with a large discretion, and its action in regard to p.n application for dismissal or nonsuit will not be disturbed, unless there has been an abuse of such discretion.” 14 Cyc. 451. The complainant in a suit in equity has tbe right to dismiss the suit without prejudice at any time before hearing, on payment of the costs, if the dismissal will deprive the defendant of no right accrued since the suit was commenced, and there is no cross-bill
“It may also be conceded that as a general rule a complainant in an original bill has the right at any time, upon payment of costs, to dismiss his bill. Put this latter rule is subject to a distinct and well-settled exception, namely, that after a decree, whether final or interlocutory, has been made, by which the rights of a party defendant hare been adjudicated, or such proceedings have been taken as entitle'the defendant to a decree, the complainant will not be allowed to dismiss ids bill without the consent of the defendant.”
The court quoted the rule stated in Daniell’s Chancery Practice (5th Am. Ed.) p. 793, as follows:
“After a decree or decretal order, the court will not allow a plaintiff to dismiss Ills 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.”
In Folger v. Robert G. Shaw Co., 2 Woodb. & M. 531, Fed. Cas. No. 4,899, a case in admiralty, it was said:
“The true test seems to be the progress in a case, so that the court have means to decide on the merits. The defendant then has rights, and may well insist on a final judgment to avoid further expense and litigation.”
The opinion in that case conceded that even after a case is ready and open for trial, and some pertinent evidence has been offered, so that the merits could be decided, there may be a dismissal without prejudice for sufficient reason presented to the court, such as surprise or unexpected absence either of witnesses or counsel. No such reason, however, was presented in this case, and we ñnd no abuse of discretion in the order of the court below denying the dismissal.
The application to take further testimony in this court, being based wholly on the record in the court below, is denied, and the decree is affirmed.