McCabe v. Southern Ry. Co.
| Citation | 107 F. 213 |
| Parties | McCABE v. SOUTHERN RY. CO. |
| Decision Date | 28 February 1901 |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Andrew Crawford, J. S. Muller, and W. St. J. Jervey, for plaintiff.
B. L Abney and B. A. Hagood, for defendant.
William McCabe brought his action for personal injuries in the court of common pleas for Richland county, in the state of South Carolina. The defendant filed in the state court its petition and bond for removal into this court because of diversity of citizenship. The state court refused the prayer of the petition. Nevertheless a copy of the pleadings was filed in this court, and the cause placed on its docket. A motion to remand was made and refused. Having retained the cause, the state court proceeded to trial against the protest of defendant, and a verdict was had for the plaintiff. On appeal to the supreme court of South Carolina the judgment of the court of common pleas was set aside upon the ground that this was a removable case, and that the lower court erred in refusing the prayer of the petition. The case remained on the docket of this court, has been continued from term to term, but has never been called for trial; the court preferring to await the result in the state court. The plaintiff then came into this court and obtained, ex parte an order granting leave to discontinue the cause on payment of the costs of this court, including costs of removal. The matter now comes up on a motion to rescind this order upon the ground that it was made without notice, and upon the further ground that, if made at all, it should be upon terms including the payment of costs incurred by defendant in the state court.
The general rule is that a plaintiff at law or a complainant in equity may discontinue his action or dismiss his bill as of course at any time before the hearing. This is the law in South Carolina, whose practice in all proceedings at law before judgment controls this court. Henderson v. Railroad Co., 123 U.S. 61, 8 Sup.Ct. 60, 31 L.Ed. 92; Rev. St. Sec. 915; Dunham v. Carson, 37 S.C. 281, 15 S.E. 960; Bank v. Rose, 1 Rich.Eq. 294. Chancellor Harper in this last-named case lays down this rule, and his language is quoted in the supreme court of the United States and of this state with approval:
'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 payment of costs.'
In Latimer v. Sullivan, 37 S.C. 121, 15 S.E. 798, plaintiff was allowed, after a case had gone into the supreme court and had been sent back for a new trial, in term time, to discontinue, without notice, one of his two causes of action.
Nor are these authorities in conflict with the federal decisions. In City of Detroit v. Detroit City R. Co. (C.C.) 55 F 572, the circuit court of appeals of the Sixth circuit (a high authority) lay it down as the clear result of the examination of 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. That case quotes the language of Harper, Ch., supra. So, in Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U.S., at page 713 et seq., 3 Sup.Ct. 594, 27 L.Ed. 1081, the same doctrine is stated, and Chancellor Harper again quoted. There are exceptions to the rule. Such an order cannot be granted if defendant has entitled himself to a decree against complainant, or when, under the practice, he has set up a counterclaim which would be barred by the statute of limitations if the complaint were dismissed, or when he sets up a cause of action in his answer and asks affirmative relief, instances of which are in W. U. Tel. Co. v. American Bell Tel. Co. (C.C.) 50 F. 664; Bethia v. McKay, Cheves, Eq. 98; and as stated in Chancellor Harper's decree, supra. The case at bar is an action for personal injuries; the defense, the general issue and contributory negligence. Defendant asks no affirmative relief. The only...
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