Hollingsworth & Vose Co. v. Foxborough Water-Supply Dist.

• Decision Date: 23 June 1898
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: HOLLINGSWORTH & VOSE CO. v. FOXBOROUGH WATER-SUPPLY DIST.

171 Mass. 450

50 N.E. 1037

HOLLINGSWORTH & VOSE CO.

v.FOXBOROUGH WATER-SUPPLY DIST.

Supreme Judicial Court of Massachusetts, Norfolk.

June 23, 1898.

Appeal from superior court, Norfolk county; J.B. Richardson, Judge.

Bill by Hollingsworth & Vose Company against Foxborough Water-Supply District. From a decree dismissing the bill, defendant appeals. Affirmed.

Wm. D. Turner, for appellant.

E.C. Bumpus and H.E. Ware, for appellee.

KNOWLTON, J.

In this case there was a decree dismissing the plaintiff's bill without prejudice, with costs to the defendant, and with a provision made, under the plaintiff's stipulation, that, if another suit is brought against the defendant for the same cause, the defendant may, if it desires, have a trial by a jury upon the issues of fact. The question is whether the decree is erroneous. In Kempton v. Burgess, 136 Mass. 192, it is said by Chief Justice Morton, in giving the opinion, that in suits in equity in which the plaintiff brings the bill for his sole benefit, and no other person is interested in its maintenance, “it is a matter of course to permit the plaintiff to dismiss his bill at any time before the hearing upon the payment of the costs.” It is also said in that case, and it is well-settled law, that a decree dismissing a bill in equity for want of prosecution, and without a hearing upon the merits, is no bar to a new suit. Such a dismissal is in fact without prejudice, and it is a safe and convenient practice so to state in the decree. Bigelow v. Winsor, 1 Gray, 299-301; Kempton v. Burgess, ubi supra. The plaintiff can have his bill dismissed as a matter of absolute right without a decision upon the merits, if no decree or order has been entered in the case. But, upon his motion to dismiss after an order or decree has been entered, it is the practice of the court to exercise its discretion in his favor, if nothing has been done which materially affects the rights or situation of the parties so as to render it inequitable to leave the defendant without a final adjudication upon the merits. In Chicago & A.R. Co. v. Union Rolling-Mill Co., 109 U.S. 702, 3 Sup.Ct. 594, it is said that the general rule that “the complainant in an original bill has the right, at any time, upon payment of costs, to dismiss his bill, *** is subject to a distinct and well-settled exception, namely, that after a decree, whether final or interlocutory, has been made, by which the rights of the party defendant have been adjudicated, or such proceedings taken as entitle the defendant to a decree, the complainant will not be allowed to dismiss his bill without the consent of the defendant.” In Saylor's Appeal, 39 Pa.St. 495, the law is stated as follows: “It is a general rule in a court of chancery that a complainant may move to dismiss his own bill, with costs, at any time before the decree, and it is a matter of course to permit him to dismiss it; and even upon the hearing of the cause, if the court has merely directed an issue, the plaintiff may, before the trial of the issue, obtain an order to dismiss the bill, with costs, because the directing of an issue is only to satisfy the conscience of the court preparatory to its giving judgment. But the rule is not so after the issue has been tried and determined for the defendant. The plaintiff cannot then move to dismiss, because the defendant is then entitled to have the cause set down for a hearing in order to obtain a formal dismissal.” See, also, Nashua & L.R. Corp. v. Boston & L.R. Corp., 164 Mass. 222-224, 41 N.E. 268; Carrington v. Holly, 1 Dickens, 280; Curtis v. Lloyd, 4 Mylne & C. 194; Booth v. Leycester, 1 Keen, 247-255; Pickett v. Loggon, 14 Ves.Jr. 215-232; American Bell Tel. Co. v. Western Union Tel. Co., 21 U.S.App. 627, 16 C.C.A. 367, and 69 Fed. 666;Purdey v. Henslee, 97 Ill. 390;Reilly v. Reilly, 139 Ill. 180, 28 N.E. 960.

The general rule seems to be that the court, on the plaintiff's motion, will dismiss his bill on payment of costs as for want of prosecution, unless something has been done in the case which entitles the defendant, on equitable grounds, to have the suit finally disposed of on the merits. If there have been decrees or other proceedings whereby a defendant's situation has been changed, and he has acquired rights which did not exist, or which had not been determined when the suit was brought, and which render it equitable that these rights should be fully secured by further proceedings in the cause, the court, at the defendant's request, will retain it for a decision upon the merits; but, when nothing has been done by the court or the parties that changes the position in which they were when the suit was begun, the rule is different. It has often expressly been held that, in order to prevent the decree allowing a dismissal of the plaintiff's bill upon his motion, on payment of costs, the injury to the...