166 F. 347 | U.S. Circuit Court for the District of Oregon | 1909
(after stating the facts as above). The interveners resist the motion on two grounds: First, that such an order as requested by the motion would deprive the interveners of a substantial right which has accrued since the commencement of the suit; and, second, that the interveners have prayed for affirmative relief, to which they are entitled, treating the answer as a cross-bill. The court will dispose of these objections in their inverse order.
It is a rule of law in the Circuit Court of the United States that a cross-bill in equity is but an auxiliary to the original suit and a dependency upon it; that is to say, it is an ancillary suit, and is always brought in the court in which is pending the original suit, of which it becomes a part. By the frame of the cross-bill, it must be preferred by a defendant to the original bill, against the plaintiff in the same suit, or against other defendants, or against both. It should state the parties to the original bill, the object, prayer, and proceeding thereon, as also the facts and rights of the party exhibiting it, and which are necessary to be made the subject of cross-litigation, or the ground upon which he resists the claim of the plaintiff; and it should pray that the cross-cause and the original cause may be heard at the same- time, and that one decree be made and entered in both causes, thus disposing of the rights of all the parties in the subject-matter of the litigation. The purpose of the cross-bill is usually to set up some matter that is not disclosed by the original bill, which is effective to give the defendant in the original suit or the complainant in the cross-bill some further or affirmative relief.' Sections 380 and 381, Bates on Fed. Hq. Procedure, vol. 1.
It may well be doubted whether the answer, if treated as a cross-bill, states any facts entitling the interveners to affirmative relief, and, if not, the prayer demanding such relief could not aid them. The relief prayed — that the interveners be declared to be the equitable owners of the base land — would inure to them under the defense of innocent purchasers, because, if sustained, it would defeat the complainant’s bill and leave them as the sole owners, and no affirmative relief would be essential to their protection. As to the further relief sought — that the interveners be decreed to be entitled to a patent to the lieu selection from the general government — the very matter is now pending in the land department for adjudication, and until that department has refused to act in the premises or has acted without authority of law, this court is probably without jurisdiction to interpose its judgment. But, waiving these objections to the answer, if the paper be considered in the light of the principles of equity pleading, it will be found wanting as coming up to the measure of a cross-bill in equity, and it could not be treated as such unless bjr acquiescence of all the parties.
Counsel suggests that complainant has waived the right to have a technical cross-bill filed by replying and consenting to go to trial. “But,” say the learned authors of the Encyclopedia of Pleading and Practice (volume 5, p. 634) ;
*351 “Affirmative relief may be granted on an answer setting up matters proper for a cross-bill only, where the cause is heard, on the merits, without any objection to the pleadings.”
This case has not proceeded so far as that, and the complainant is resisting a trial upon the present state of the pleadings.
It is essential to the interveners obtaining the alleged affirmative relief that they shall have procured a standing in court by a cross-bill, framed and filed in practical accord with the rules of equity pleading. There are cases, under an exception to the general rule, in which affirmative relief may be granted upon the answer alone; but this is not one of them. Bates, Fed. Fq. Procedure, § 318; 5 Fnc. PL & Practice, 6 34-63 7. Unless, therefore, the interveners are in a position, legally fortified, to demand the affirmative relief, they do not occupy a position whereby they may successfully object to the complainant’s dismissing, without prejudice, its original bill, with the effect of carrying the entire suit with it. It follows that the second objection is without merit.
As to the first objection, it is insisted that, because the interveners have set up matter against the government which it is claimed constitutes a cause of suit, and in which ordinarily the government would not be required to appear if instituted by an original bill, yet that, the government having answered or replied, and thereby made itself a party to the proceeding, it has given to the interveners a standing in court which is tantamount to a substantial right, which right would be lost to them if fhe suit were dismissed. Therefore they insist that the motion should be disallowed on this ground.
The reasons advanced by the prosecuting attorney for wanting the cause dismissed are that the suit was instituted on" a mistake as to the fads; that it was supposed that John Reese was a real person, but that later it has been ascertained that he has no personal existence, and that he was but a fictitious person- -the name “John Reese” being made use of by designing parties through which to defraud the government ; and that also the name “G. Ott.ersou” is fictitious, and was used for a like purpose; hence that the basis and theory upon which the suit should proceed would be an entirely different one, and one which would eliminate the defense of innocent purchasers. It is, therefore, further insisted by the interveners that, if this suit were dismissed, it would deprive them of that defense also, so that they would in the end be deprived of a very substantial right by a dismissal of the same. It may be remarked that this right, whatever may be its effect or force, has not arisen by reason of any order of the court, either interlocutory or final, and it does not occur to me that it comes within the reason of the rule applicable.
The general rule is stated thus:
“That the plaintiff has the right; nl any time, before an interlocutory or final decree in a case, to dismiss it on paying costs, and without prejudice to his right to file another.” Sinilcins on Suits in Equity, p. 227.
But it is said in C. & A. R. R. Co. v. Union Rolling Mill Co., 109 U. S. 702, 713, 3 Sup. Ct. 591, 27 L. Ed. 1081, that the rule—
“is subject to a distinct and well-settled exception, namely, that after a decree, whether final or interlocutory, hits been made, by which the rights of a party defendant have been adjudicated, or such proceedings have been taken*352 as entitle the defendant to £ decree, the complainant will not be allowed to dismiss his bill without the consent of the defendant.”
The exception is thus stated in Watt v. Crawford, 11 Paige (N. Y.) 472:
“Before any decree or decretal order has been made in a suit in chancery, by which a defendant therein has acquired rights, the complainant is at liberty to, dismiss his bill upon payment of costs.; but after a decree has been made by which a defendant has acquired rights, either as against a complainant or against a codefendant in the suit, the complainant’s bill cannot be dismissed without destroying those rights. The complainant in such a case cannot dismiss without the consent of all parties interested in the decree, nor even with such consent, without a rehearing, or upon a special order to be made by the court.”
Now,'whatever rights, if any, the interveners have acquired in this proceeding, have been so acquired upon the pleadings only, and without any order of the court, either by interlocutory or final decree. True, there is a stipulation in the case, but this was in the interest of the complainant, by which it preserved its right to file a reply and to take the testimony under the equity rule; but th'e interveners have acquired no specific right or advantage thereby, and all that they can claim is that they have acquired rights under the pleadings by reason of the complainant proceeding upon a mistaken notion of the state of facts as they really exist. These are not such rights as will prevent the complainant from having a dismissal of the bill without prejudice. The dismissal of the bill will carry the cross-bill with it, and the entire suit.
It is further'insisted that, as the time has expired for the complainant to take its testimony under the stipulation and the rule, the in-terveners are entitled to have the case put upon the equity calendar for trial, and an order dismissing the complaint as a matter of right; citing Welsbach Light Co. v. Mahler (C. C.) 88 Fed. 427. The motion of complainant, however, to dismiss the cause without prejudice was interposed prior to the expiration of the time for taking the testimony in its behalf, and, as there has not been an unusual delay in taking such testimony, I think the objection is not well assigned.
For the reasons herein set forth, the motion of the complainant to dismiss the suit without prejudice will be allowed.
