Bennett v. Bennett
| Decision Date | 17 May 1907 |
| Citation | 66 A. 706,106 Md. 122 |
| Parties | BENNETT v. BENNETT. |
| Court | Maryland Court of Appeals |
Appeal from Court of Common Pleas.
Judicial proceedings on the probate of the will of Henry C. Bennett deceased, in which William A. Bennett filed a caveat, and Nellie K. Bennett, as caveator, appeals from an order of the circuit court dismissing the case after the framing of issues in the orphans' court. Reversed and remanded.
Argued before BRISCOE, SCHMUCKER, BOYD, and PEARCE, JJ.
Wm. M Maloy and William J. O'Brien, Jr., for appellant.
E. L Painter, for appellee.
It appears from the record in this case that Henry C. Bennett late of Baltimore county, died on December 28, 1903, leaving the appellant as his widow, but no children. One week thereafter a paper purporting to be his last will, and on its face duly executed and attested as such, was offered for probate in the orphans' court for Baltimore county. On the same day, but before the offer of the will for probate, the appellee, who is a nephew of the testator, filed a caveat to it, which was answered by the appellant on March 1, 1904. On petition of the caveator issues were framed and sent for trial to the circuit court for Baltimore county on March 1, 1905; the caveator being designated by the orphans' court as plaintiff. The proceedings were removed to the circuit court for Howard county on August 1, 1905, on the suggestion of the caveator that he could not have a fair trial in Baltimore county, and on the 2d of February, 1906, they were removed to the court of common pleas of Baltimore city upon the suggestion of the caveatee that she could not have a fair trial in Howard county. On January 23, 1907, the caveator's attorney filed in the office of the clerk of the court of common pleas an order entitled in this case to "enter the above-entitled case dismissed." On the same day the caveator filed in the case a petition and motion of ne recipiatur as to the order of dismissal. This petition was answered by the caveator, and upon a hearing of the matter the court passed an order overruling the motion and dismissing the petition, and the caveatee appealed from the order. Before the passing of the order appealed from the caveator gave notice to the orphans' court of Baltimore county of his intention to file another caveat to the will.
The single issue raised by the appeal is whether the caveator was entitled to dismiss the caveat at the stage of the proceedings at which he filed the order for that purpose, without the consent of the caveatee. The precise question of the extent of a caveator's right to dismiss the entire proceedings upon a caveat filed by him against the objection of the caveatee, after an answer has been filed to the caveat and issues sent to a court of law for trial, has not we believe been passed upon by this court. There have been, however, a number of cases decided by us sufficiently similar to the one at bar to throw much light upon the principles involved in its determination. The right of the plaintiff as a general rule in an action at law to dismiss the case or suffer a nonsuit at any time before verdict has long been recognized, but in suits in equity this court, in the case of Riley v. First Nat. Bank, 81 Md. 26, 31 A. 585, held after careful consideration that the plaintiff had no such unrestricted right of dismissal. It was said in that case: "After a bill has been filed and proceedings had under it, when counsel have appeared and costs have been incurred, it would be an unfair advantage to allow the plaintiff's attorney the right to dismiss his client's complaint as to parties, either plaintiff or defendant, without the previous sanction of the court." In support of the views thus expressed the court cited, Daniell's Chy. Pldg. & Prac. 790, Wiswell v. Starr, 50 Me. 384, and Camden & Amboy R. R. Co. v. Stewart, 19 N. J. Eq. 69.
In Price v. Taylor, 21 Md. 356, where issues upon a caveat to a will were dismissed upon the ex parte order of the caveator, filed in the court of law where they had gone for trial, the court, in discussing his right to discontinue the proceeding, applied to the case the ordinary rule in actions at law that the plaintiff may discontinue the suit at anytime by a written order to the clerk to that effect. But in that case the court said, in its opinion, on page 364 of 21 Md.: "We do not intend to say, however, that parties plaintiff would always have the right to dismiss issues without trial. *** In Levy v. Levy, 28 Md. 21, the court, relying on the decision in Price v. Taylor, supra again applied to issues under a caveat to a will the rule applicable to actions at law, and held that a caveator might dismiss the issues upon the caveat by an order to that effect filed in the case. It is to be observed, however, that neither in Price v. Taylor nor Levy v. Levy did the caveatee object to or attempt to prevent the dismissal of the issues or show cause why it ought not to have been permitted. In the Berry Will Case, 93 Md. 560, 49 A. 401, we have for the first time an attempt by a caveator to dismiss issues, over the objection of the caveatee, in the court of law to which they have been sent for trial. The lower court in that case permitted the dismissal, and this court upon appeal reversed the action of the lower court. It is true that Berry's Case differs from the one at bar, in that there the effort was to dismiss only certain ones, and not all of the issues, and that the effort was...
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