Vaneman v. Fairbrother

7 Blackf. 541 | Ind. | 1845

Dewey, J.

— This was a bill in equity brought by Vane-man against Fairbrother and others, the defendants in error, at the April term, 1843, of the Kosciusko Circuit Court. The bill prayed for a certain injunction, and for certain other relief. A temporary injunction was granted at that term; and jFairbrother's answer was filed at the same term. At the next term the .injunction-was dissolved. The cause was continued from term to term, until the October term, 1844. In the vacation of the preceding term, the complainant dismissed his bill in the clerk’s office. At the last-named term the complainant, having paid the costs, moved the Court to dismiss the bill “without prejudice.” The Court refused to permit it to be dismissed with that qualification, but dismissed it “with .prejudice.” The complainant prosecutes this writ of error, and contends that it was erroneous not to'-dismiss the cause in the form asked for by him.

There is nothing in our statutes on the subject of dismissing a bill in chancery, either in term or vacation^' except a provision that, when a decree shall have been reversed by this Court and remanded to the Court below with instructions, the complainant may, nevertheless, dismiss his bill in that Court, upon the payment of costs, without prejudice to his legal or "equitable rights. R. S. 1843’, p. 635. The dismissal of the bill in the clerk’s office, therefore, was unauthorized, and .amounts to nothing.

But, independently of any statutory provision, a plaintiff in equity has absolute control over- the suit until the decree, and may, previously to that event, dismiss his bill in Court at his pleasure. 1 Smith’s Ch. Pr. 312.—Handford v. Storie, 2 Sim. & Stu. 196. But such dismission does not operate like a decree of dismission on final hearing, and cannot be pleaded in the same manner; it operates only in the nature of a nonsuit at law, and does not bar other proceedings for the same 'cause, either at law or in chancery. 1 Smith’s Ch. Pr. 334.—Brandlyn v. Ord, 1 Atk. 571.—Countess of Plymouth v. Bladon, 2 Vern. 32. Such a dismission is all that the record shows in the present case. Had the order of dismission contained the words “without prejudice,” as desired by the complainant, it would have afforded no more security to his' rights than it would without them; and the insertion of the words “with prejudice,” as insisted on by the Court, does not render the order of dismission peremptory, like a decree of dismission on the merits. Either set of words is unmeaning in an order of dismissal, on the motion of the complainant, without a final hearing,'as it would have been, had the cause been dismissed on motion of the defendants, for want of prosecution.

D. D. Pratt, for the plaintiff. J. W. Chapman, A. L. Osborn, and J. B. Niles, for'the defendants.

It follows, that this Court has no jurisdiction of the cause. There was no decree, interlocutory or final, on which to found a writ of error. A plaintiff in equity can no more prosecute a writ of error upon an order of dismission of the bill procured on his own motion, than could a plaintiff at law upon his own voluntary nonsuit.

Per Curiam,.

— The suit is dismissed for want of jurisdiction.