State v. McConnell

• Decision Date: 03 March 1928
• Citation: 3 S.W.2d 161
• Parties: STATE for Use of SMITH et al. v. McCONNELL, State Superintendent of Banks, et al.
• Court: Tennessee Supreme Court

3 S.W.2d 161

STATE for Use of SMITH et al. v. McCONNELL, State Superintendent of Banks, et al.

Supreme Court of Tennessee.

March 3, 1928.

Certiorari to Court of Appeals on Appeal from Chancery Court, Davidson County; James B. Newman, Chancellor.

Bill by the State of Tennessee for the use of P. G. Smith and others against Sidney S. McConnell, Superintendent of Banks, and others. On complainants' motion, the bill was dismissed without prejudice. Defendants appealed, and the Court of Appeals modified the decree by eliminating that portion which authorized a dismissal without prejudice, and complainants bring certiorari. Decree of Court of Appeals reversed, and decree of the chancellor affirmed.

Jeff McCarn and Thos. G. Kittrell, both of Nashville, for complainants Smith and others.

The Atty. Gen., Bass, Berry & Sims and Percy D. Maddin, all of Nashville, for defendants.

McKINNEY, J.

Broadly speaking, the bill seeks a recovery against McConnell, superintendent of banks, and the surety, on his official bond, for nonfeasance in office alleged to have resulted in pecuniary loss to complainants.

The bill was seasonably demurred to, but the case was not set for hearing by complainants at the first term subsequent to that at which the demurrers were interposed.

A motion was filed by defendants to dismiss the suit because the demurrer was not set for hearing at the first term.

Pending the hearing of said motion, the complainants made a motion to be permitted to dismiss their bill without prejudice, which motion was granted by the chancellor, and to which the defendants excepted and prayed an appeal to the Court of Appeals. The latter court modified the decree of the chancellor to the extent of eliminating that portion which authorized a dismissal "without prejudice." Upon petition, filed by complainants, the writ of certiorari has been granted and the cause argued before this court.

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 a dismissal with prejudice."

This court frequently orders a dismissal without prejudice even where a trial is had upon the merits. Marley v. Foster, 102 Tenn. 241, 52 S. W. 166; Grubb v. Browder, 11 Heisk (58 Tenn.) 299.

While there are exceptions to this rule, we have been referred to no authority that brings the...