City of Detroit v. Detroit City Ry. Co.

• Decision Date: 16 March 1893
• Docket Number: 3,320.
• Citation: 55 F. 569
• Parties: CITY OF DETROIT v. DETROIT CITY RY. CO. et al.
• Court: U.S. District Court — Eastern District of Michigan

55 F. 569

CITY OF DETROIT v. DETROIT CITY RY. CO. et al.

No. 3,320.

United States Circuit Court, E.D. Michigan.

March 16, 1893

John J Speed, Charles A. Kent, and Benton Hanchett, for complainant.

Ashby Pond, Frederick A. Baker, John C. Donnelly, Henry M Duffield, Otto Kirchner, and Henry M. Campbell, for respondents.

Before TAFT, Circuit Judge, and SWAN, District Judge.

TAFT Circuit Judge.

This is an equitable cause, which was removed from the circuit court of Wayne county on the ground of local prejudice, after it was set for hearing on bill and answer. A motion to remand after full hearing in this court, was denied. 54 F. 1. It was regularly noticed in this court for hearing at the present March term, and, when called on the opening day of the term, was specially set over to be heard at a later day. That day having arrived, the complainant submits two motions in the alternative. The first motion is that the case be postponed for hearing until the June term. The ground for this motion is not that the complainant and its counsel are not now prepared to argue the case on its merits, but it is that a case is now pending before the supreme court of the state of Michigan which, when decided, will settle the construction of the statutes and constitution of Michigan, and determine the only question involved in this case. It may be fully conceded that this court, upon such a question, will follow exactly the decisions of the supreme court of Michigan when rendered because they constitute the law of the state which we are to administer; but it is by no means clear that the case referred to will necessarily decide the point here involved, and it is also uncertain when the case will come on for final determination. It is also said that the complainant proposes to invoke the aid of the state to test the question here involved, in a quo warranto proceeding to be begun after the 9th day of May next against the respondent the Detroit Citizens' Street Railway. It is not free from doubt whether the question can be presented in that way. It is the duty of the federal courts, as of other courts, to give as speedy justice as may be to suitors, and, while it is also their plain duty to accept state law from the state supreme courts on the construction of state laws and constitutions, it never has been held proper for them to delay litigation before them until state courts shall have decided the same questions, for this would be an abdication of their duties as courts. When a question of law is presented, of whatever character, they must follow the lights they have. Burgess v. Seligman, 107 U.S. 20, 2 S.Ct. 10. The motion to postpone will be overruled.

The motion in the alternative is to dismiss the bill in this case without prejudice. The motion is accompanied with the frank statement that the complainant prefers another tribunal than this in which to litigate its rights, and that, with this in view, it proposes after the 9th of May to procure the attorney general to institute quo warranto proceedings which cannot be removed to this court. While it may not be usual to have so candid an avowal of the fact made, the federal courts are frequently compelled to administer justice in cases where one of the parties would prefer another forum. A motion to remand implies this preference. We have found, however, that one of the respondents had the right, under the constitution and laws of the United States, to call upon this court to take jurisdiction of the case. If we are wrong, the question can be reviewed in the supreme court of the United States. As against the right of one party, the preference of another has not usually been regarded of weight. It may not be pleasant to administer justice under such circumstances, but, as we cannot consult the preference of a party, so we cannot consult our own, where our jurisdiction is rightfully invoked. We can only assure ourselves that the attitude of the parties with respect to this court does not in any way affect our earnest wish to reach the truth, and decide this case as equity and law may require.

The motion to dismiss presents a question of equity practice which is not as clearly settled as could be desired. It seems hardly fair that after a case has been got ready for hearing and the defendant has gone to the expense of a full preparation, the complainant may deprive the defendant of the benefit of all that preparation by a dismissal, under which he reserves full power to harass him by bringing a new bill when he shall choose to do so, on the simple condition that he pay the costs, which are so notoriously inadequate to compensate defendant for his actual expenditures. In England, since 1845, the rule has been, by virtue of an order in chancery, that a dismissal of a bill after a cause is set for hearing is on the merits and must be a bar to the bringing of another bill. General Ordinance No. 117; Mayor, etc., of Liverpool v. Chorley Waterworks Co., 2 De Gex, M.&G. 852; In re Orrell Colliery & Fire Brick Co., 12 Ch.Div. 681, 682. The equity rules of the United States supreme court adopting the practice of the high court of chancery of England were published in 1842, and it follows, therefore, that the equity practice in this regard of the federal courts continues to be that prevailing in the English chancery courts before the new rule was promulgated, in 1845. Badger v. Badger, 1 Cliff. 237; Stevens v. The Railroads, 4 Fed.Rep. 97; Western Union Tel. Co. v. American Bell Tel. Co., 50 F. 662.

It is very clear from an examination of the authorities, English and American, that the right of a complainant to dismiss his bill without prejudice, on payment of costs, was of course except in certain cases. Chicago & A.R. Co. v. Union Rolling-Mill Co., 109 U.S. 702, 3 S.Ct. 594. The exception was where a dismissal of the bill would prejudice the defendants in some other way than by the mere prospect of being harassed and vexed by future litigation of the same kind. The exceptions are as broadly and clearly stated as anywhere by Chancellor Harper, of South Carolina, in the case of Bank v. Rose, 1 Rich.Eq. 294, as follows:

'Harper, Ch. The general rule is, as contended for, that the plaintiff at any time before decree, perhaps before the hearing, may dismiss his bill as of course upon the payment of costs; but certainly it cannot be said that the rule is without exception. The exception, stated in general terms, is that it is within the discretion of the court to refuse him permission to do so if the dismissal would work a prejudice to the other parties; and I gather from the cases, compared with each other, that it is not regarded as such prejudice to a defendant that the complainant, dismissing his own bill, may at his pleasure harass him by filing another bill for the same matter. But whenever, in the progress of a cause, a defendant entitles himself to a decree, either against the complainant or against a codefendant, and the dismissal would put him to the expense and trouble of bringing a new suit and making his proofs anew, such dismissal will not be permitted.'

In that case there had been a cross bill filed, and affirmative relief asked, and the case had been prepared for hearing, and it was held a case where the motion to dismiss could not be granted. In Booth v. Leycester, 1 Keen, 247, where a bill and cross bill were set down for hearing together, it was held that the complainant would be prejudiced by dismissal of the cross bill without prejudice, and leave was not granted. In Electrical Accumulator Co. v. Brush Electric Co., 44 F. 602, Mr. Justice Brown held that where, under an answer, and by virtue of the statute controlling patent litigation, a defendant was given a right, in the nature of affirmative relief, to have the patent sued on declared void, and the case had been pending three years, the defendant was entitled to have the original bill heard in spite of a motion to dismiss. In Manufacturing Co. v. Waring, 46 F. 87, Judge Lacombe held that a complainant was not entitled of right to dismiss his bill after the answer is filed, setting up that the license to use a patent upon which the suit is brought is fraudulent and void; and showing that defendant is entitled to a decree for its cancellation. In Western Union Tel. Co. v. American Bell Tel. Co., 50 F. 662, 664, the rule is stated by Judge Colt as follows:

'Under that practice (i.e. the English chancery practice before 1845) the general rule was that a complainant might dismiss his bill upon payment of costs at any time before interlocutory or final decree; and

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