Lyle v. De Bord

• Decision Date: 29 November 1947
• Citation: 206 S.W.2d 392
• Parties: LYLE et al. v. DE BORD et al.
• Court: Tennessee Supreme Court

206 S.W.2d 392

LYLE et al. v. DE BORD et al.

Supreme Court of Tennessee.

November 29, 1947.

Appeal from Chancery Court, Washington County; Joe W. Worley, Chancellor.

Suit by Cy H. Lyle and others, against C. L. DeBord and others, to invalidate a tax title to real estate. From a decree allowing complainants to take a non-suit without prejudice, defendants appeal.

Decree affirmed.

Burrow & Burrow, of Bristol, Price & Price and B. B. Snipes, all of Johnson City, for complainants.

Simmonds & Bowman, of Johnson City, and Robert M. May, of Jonesboro, for defendants.

BURNETT, Judge.

The bill herein, three times amended, was filed to invalidate a tax title to certain real estate in Johnson City.

A demurrer was seasonably filed to the bill and to each amendment by the various parties defendant.

Apparently after the last amendment and demurrer thereto the cause was submitted to the Chancellor for determination thereon. Before he acted on the cause as thus submitted the complainants informed him they desired to take a "voluntary non-suit". When this fact was made known to counsel for the DeBord's, appellants herein, they wrote the Chancellor objecting to a non-suit and citing in support of their objection a code section applicable to law causes.

While in this state the Chancellor wrote counsel for all parties on June 4, 1946, denying the complainants the right to take a non-suit. In his letter he bases his action on certain cases that apply to law causes No order was entered of record showing an application for non-suit. No order was entered denying the right of dismissal at the time.

On December 17, 1946, the Chancellor handed down a "memo" opinion sustaining the demurrer to the bill. On the same day an order was entered in compliance with this "memo" opinion.

On January 16, 1947, the complainants filed a vigorous petition to rehear based on their previous application to take a non-suit or voluntary dismissal. It was then for the first time pointed out that the authorities on which the Chancellor based his ruling as per his letter of June 4, 1946, applied to law causes and not to chancery cases. This petition being filed and answered the Chancellor directed a nunc pro tunc order be entered in accord with his letter of June 4, 1946. He then granted the petition to rehear and allowed the complainants "to take a non-suit without prejudice." It is from this order that the defendants appeal.

In State for use of Smith et al. v. McConnell, 156 Tenn. 523, 525, 3 S.W.2d 161, an appeal was to the Court of Appeals from a like order to that entered in the instant case. The Court of Appeals "modified the decree of the chancellor to the extent of eliminating that portion which authorized a dismissal `without prejudice.'" This court granted a petition for certiorari and in reversing the Court of Appeals said:

"The general rule is that a suit may be dismissed without prejudice where the case has not been disposed of on the merits.

"In 21 C.J., 639, it is said:

"`A dismissal without prejudice is generally proper wherever the case has been disposed of for a reason not reaching the merits.'

"In Gibson's Suits in Chancery (New) § 570, it is said:

"`When a bill is dismissed (1) because of some slip or mistake in the pleadings or proof, or (2) because of failure to give some required bond, or (3) for want of any of the prerequisites of the writ, or (4) for want of necessary parties, or (5) for any other reason not involving the merits of the controversy, it should generally be dismissed without prejudice to complainant's rights to file another bill. And even when there is an adjudication upon the merits, and it appears probable from the pleadings, or proof, that, in a new suit, better adapted to the equities sought to be set up, relief may be had, or that, in a subsequent suit, evidence not now attainable may be produced, the court will, on application, incline to dismiss the bill without prejudice, if the complainant is guilty of no negligence or bad faith.

"`Where, however, the defendant has taken his proof on the merits, and the complainant has either taken no proof, or is unwilling to have the cause heard on the proof on file, he should not be allowed to dismiss his bill without prejudice; and thus be given full leave to again relitigate the same matters with the same parties. In such case the complainant may subject to the rules heretofore laid down in this chapter, dismiss his bill, but such dismissal must be subject to all the consequences incident to...