Eigenman v. Eastin

• Decision Date: 15 January 1897
• Docket Number: 2,098
• Citation: 45 N.E. 795,17 Ind.App. 580
• Parties: EIGENMAN ET AL. v. EASTIN, ADMINISTRATRIX
• Court: Indiana Appellate Court

45 N.E. 795

17 Ind.App. 580

EIGENMAN ET AL. v. EASTIN, ADMINISTRATRIX

No. 2,098

Court of Appeals of Indiana

January 15, 1897

Rehearing denied May 21, 1897.

From the Vanderburgh Superior Court.

Affirmed.

C. L Wedding, C. A. De Bruler and Alexander Gilchrist, for appellants.

J. E Williamson, for appellee.

OPINION

BLACK, J.

The appellee, on the 10th of October, 1894, brought her action against the appellants, and recovered judgment against them for damages in the sum of $ 1,750.00, for causing, through their negligence, the death of her intestate, who was her husband.

The appellants at their first appearance moved that the appellee be required to pay the costs of a former action, and that, on her failure to do so within ten days, the cause be dismissed.

The motion was overruled, and this action of the court is assigned as error.

The motion, which was verified, stated in substance that the plaintiff, in 1894, brought this action in the court below for the same matters and things for which this suit was brought, using the same complaint in each action; that after ample time, proper care and attention to all the matters by counsel and court, the case was brought to trial October 9, 1894; that the defendants incurred extra expense in asking a struck jury; that the case was carefully tried by the plaintiff, and after all her evidence was in, "it being the judgment of the defendant's attorney that upon that evidence there could be no recovery under the law by the plaintiff, declined to offer any evidence, and asked the court to instruct the jury to find a verdict for the defendants;" that after the argument, the court extended the plaintiff further time to make further argument and cite authorities, and also offered to hear any further evidence which might be offered; "and that after all this showing of liberality to the plaintiff, the court announced that upon all the points the plaintiff had failed to make any case, and thereupon the plaintiff, after this full and fair treatment, and after she was offered every opportunity to make her case and yet failed," dismissed the case and refiled the same complaint, and a judgment was entered against her for costs, taxed at $ 130.30.

The record before us does not contain any counter-affidavit, or indicate that any other evidence was offered by the parties or heard by the court upon the motion.

Where a cause has been voluntarily dismissed by the plaintiff, and the costs have been awarded against him, and he has brought another action for the same cause, an application of the defendant for a stay of proceedings until the costs so awarded have been paid, or for the dismissal of the second action because of nonpayment of such costs within a limited time, is addressed to the sound discretion of the court.

The plaintiff has an absolute right to dismiss.

An application to prevent him from proceeding with the second action unless he pay the costs of the former one should not be sustained, unless it appears to the court in the exercise of a sound discretion under the facts and circumstances of the particular case, that the second action is without merit, and vexatious.Kitts v. Willson,89 Ind. 95;Harless v. Petty,98 Ind. 53;Sellars v. Myers,7 Ind.App. 148, 34 N.E. 496.

The rule has been stated in this State to be, "that the second action will be deemed vexatious until the inference shall be removed by a showing on the part of the plaintiff."Kitts v. Willson, supra;Harless v. Petty, supra.

In Sellers v. Myers, supra, it was said by this court, that "the presumption of vexation gives rise only to the bare probability which fades away before the slightest countervailing evidence."

Of course, if it should appear from all the evidence before the court that the suit is not vexations,...