In re Skinner & Eddy Corporation, 28

• Decision Date: 12 May 1924
• Docket Number: No. 28,28
• Parties: In re SKINNER & EDDY CORPORATION
• Court: U.S. Supreme Court

265 U.S. 86

44 S.Ct. 446

68 L.Ed. 912

In re SKINNER & EDDY CORPORATION.

No. 28.

Argued on Return to Rule to Show Cause April 14, 1924.

Decided May 12, 1924.

Messrs. Louis Titus, of Washington, D. C., George Donworth, of Seattle, Wash., and J. Barrett Carter, of Washington, D. C., for petitioner.

[Argument of Counsel from page 87 intentionally omitted] Mr. Alfred A. Wheat, of New York City, for respondents.

[Argument of Counsel from pages 88-90 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a petition for a writ of mandamus directed to the Court of Claims to restore its order of April 30, 1923, dismissing the suit of the Skinner & Eddy Corporation against the United States, and to set aside its order of November 28, 1923, vacating the order of dismissal and to prohibit the court from attempting to exercise further jurisdiction in the case. The judges of the Court of Claims have made a response to a rule to show cause.

On June 15, 1921, the petitioner brought this suit against the United States in the Court of Claims for $17,493,488.97. The cause of action was based on balances alleged to be due for the construction of certain ships, for bonuses for advanced deliveries of others, and for extra labor, extra work and repairs on other vessels, all for the United States. The principal part of the claim grew out of the cancellation of two contracts between the petitioner and the United States Emergency Fleet Corporation 'representing the United States.' The largest item of the claim was for anticipated profits on 25 vessels. On August 15, 1921, no plea, answer or notice of any counterclaim having been filed by the government, a general traverse was entered by the clerk of the court under its rule No. 34. No further pleadings were filed and no proceedings were had of any kind until April 11, 1923, when petitioner filed its motion to dismiss the suit without prejudice. The petitioner based the motion on the ground that it had begun its suit under the Act of June 15, 1917 (chapter 29, 40 Stat. 182, 183), as amended by section 2, par. (c), of the Merchant Marine Act of June 5, 1920 (chapter 250, 41 Stat. 989 [Comp. St. Ann. Supp. 1923, § 8146 1/4 a]); that, as interpreted by this court, these acts required the claims to be first presented to the President for him to determine the just compensation, prior to the filing of a suit; and that, as this claim was not presented to the President, the Court of Claims had no jurisdiction. On April 12th the government moved to withdraw its general traverse and for leave to file its answer and cross-bill. The motions were argued, and on April 30, 1923, the court made an order granting the petitioner's motion and dismissed its petition.

On May 1, 1923, one day after the dismissal, the petitioner filed a suit against the United States Shipping Board Emergency Fleet Corporation in the state court of Washington at Seattle, on substantially the same causes of action as those sued for in the Court of Claims, but omitting certain phases of damages claimed, for $9,129,401.14.

On June 9, 1923, at the same term of the court the government moved for a reargument of petitioner's motion to dismiss without prejudice, and to allow the government to file a counterclaim. The motion was inadvertently overruled October 22, 1923, but, upon restoration and reargument, the order of dismissal was vacated and leave was given to the government to file its counterclaim.

It is intimated on behalf of the government that the reason given by the petitioner for his motion to dismiss in April, 1923, was not a genuine one. The petitioner offers that and others. Others are that under the decision of this court in Sloan Shipyard Corporation v. United States Shipping Board Fleet Corporation, 258 U. S. 549, 42 Sup. Ct. 386, 66 L. Ed. 762, and United States Shipping Board v. Sullivan, 261 U. S. 146, 43 Sup. Ct. 292, 67 L. Ed. 577, it was doubtful whether under the contracts sued on a recovery could be had against the government in the Court of Claims; and, second, that it was doubtful whether under Russell Motor Co. v. United States, 261 U. S. 514, 43 Sup. Ct. 428, 67 L. Ed. 778, there could be any recovery for anticipated profits under the canceled contracts, which was the basis for nearly half of the claim.

We think this mandamus must be granted. At common law a plaintiff has an absolute right to discontinue or dismiss his suit at any stage of the proceedings prior to verdict or judgment, and this right has been declared to be substantial. Barrett v. Virginian Railway Co., 250 U. S. 473, 39 Sup. Ct. 540, 63 L. Ed. 1092; Confiscation Cases, 7 Wall. 454, 457, 19 L. Ed. 196; Veazie v. Wadleigh, 11 Pet. 55, 9 L. Ed. 630; United States v. Norfolk & Western Ry. Co., 118 Fed. 554, 55 C. C. A. 320.

It is ordinarily the undisputed right of a plaintiff to dismiss a bill in equity before final hearing. McGowan et al. v. Columbia, etc., Association, 245 U. S. 352, 358, 38 Sup. Ct. 129, 62 L. Ed. 342. In Pullman's Car Co. v. Transportation Co., 171 U. S. 138, 146, 18 Sup. Ct. 808, 43 L. Ed. 108, this statement of the rule in City of Detroit v. Detroit City Railway Co. (C. C.) 55 Fed. 569, was approved:

'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 Sup. Ct. Rep. 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.'

See Cowham v. McNider (D. C.) 261 Fed. 714; Thomson-Houston Electric Co. v. Holland (C. C.) 160 Fed. 768; Morton Trust Co. v. Keith (C. C.) 150 Fed. 606; Pennsylvania Globe Gaslight Co. v. Globe Gaslight Co. (C. C.) 121 Fed. 1015; Youtsey v. Hoffman (C. C.) 108 Fed. 699; McCabe v. Southern Railway Co. (C. C.) 107 Fed. 213.

The right to dismiss, if it exists, is absolute. It does not depend on the reasons which the plaintiff offers for his action. The fact that he may not have disclosed all his reasons, or may not have given the real one, cannot affect his right.

The usual ground for denying a complainant in equity the right to dismiss his bill without prejudice at his own costs is that the cause has proceeded so far that the defendant is in a position to demand on the pleadings an opportunity to seek affirmative relief and he would be prejudiced by being remitted to a separate action. Having been put to the trouble of getting his counter case properly pleaded and ready, he may insist that the cause proceed to a decree.

We do not perceive in the circumstances of this...