Western Union Tel Co. v. American Bell Tel Co.

• Citation: 50 F. 662
• Decision Date: 23 May 1892
• Docket Number: 1,943.
• Parties: WESTERN UNION TEL. CO. et al. v. AMERICAN BELL TEL. CO.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

50 F. 662

WESTERN UNION TEL. CO. et al. v. AMERICAN BELL TEL. CO.

No. 1,943.

United States Circuit Court, D. Massachusetts.

May 23, 1892

Josiah H. Benton, Jr., for complainants.

William G. Russell and E. Rockwood Hoar, for defendant.

COLT Circuit Judge.

This case was heard on motion of complainants to dismiss the bill without prejudice, on payment of costs. On November 16, 1883 the complainants filed the present bill against the defendant, praying for discovery and account, under a certain contract. The defendant answered, denying the equities of the bill. The complainants then filed a general replication. On May 28, 1886, the case was referred to a master by agreement of counsel, and the following order was made by the court:

'And now, to wit, May 28, 1886, upon agreement of parties filed it is ordered that the above-named cause be referred to Hon. John Lowell as master to hear the parties and report the facts, with such part of the testimony as either party shall request, and his rulings on any question of law arising in the case.'

An examiner was subsequently appointed and testimony was taken by both parties. This evidence was submitted to the master, and oral arguments were made before the master, it was agreed that, prior to the filing of his report, a draft report should be submitted to counsel, in order that they might present objections thereto. On February 19, 1890, the master filed a report, without having submitted the same to counsel. The next day, upon being reminded of the agreement of counsel, he withdrew the report from the files of the court, and counsel entered into the following stipulation: 'It is agreed that the paper filed in this case.as the master's report shall be taken into his custody, and considered as not filed, with all accompanying documents. ' Thereupon the draft report was returned by the clerk to the master. Thirty days were then allowed by the master to each party to submit objections to the report, and the time was subsequently extended to April 25th. Upon that date the complainants applied to the master for time to take further testimony. This application the master refused, and ordered that all objections to the draft report should be made on or before May 7th. On that day the complainants made another application to take further evidence, which the master denied, and ordered that objections to the draft report should then be made. Thereupon objections to the report were filed with the master, the counsel for the complainants filed their motion to dismiss the bill without prejudice, upon payment of costs. On June 3d the complainants requested the master to take no further action, and make no report in the case, pending the decision of their motion to dismiss. On August 11th the master filed his report in court, with all the evidence and accompanying documents.

Upon the foregoing statement of facts, I do not think there can be any question as to the time when the master's report must be considered as filed. Under the agreement of counsel, and by the subsequent action of the master, no report was actually filed until August 11th. Whatever was done February 20th with respect to filing the report was an inadvertence on the part of the master, and can affect in no way the rights or standing of the parties to this suit. In the consideration of this motion I must treat the master's report as not filed until August 11th, or more than two months after the filing of complainants' motion to dismiss.

We have, therefore, this single proposition to decide: whether under these circumstances, the complainants are entitled to dismiss their bill without prejudice, upon payment of costs; and this is a question purely of equity practice. It is admitted that, under equity rule 90, this court is governed by the equity practice of the high court of chancery of England as it existed in 1842, the time of the adoption of the rule. Under that practice, the general rule was that a complainant might dismiss his bill upon payment of costs at any time before interlocutory or final decree, and this has been the general practice both in the federal and state courts. There are, however, certain well-recognized exceptions to this rule, and the question which arises upon this motion is whether the defendant comes within any of these exceptions. These exceptions are based upon the principle that a complainant should not be permitted to dismiss his bill when such action would be prejudicial to the defendant. But this does not mean that it is within the discretion of the court to deny the complainant this privilege under any circumstances, where it might think such dismissal would work a hardship to the defendant, as, for example, where it might burden him with the trouble and annoyance of defending against a second suit; but it means that if, during the progress of the case, the defendant has acquired some right, or if he seeks or has become entitled to affirmative relief, so that it would work an actual prejudice against him to have the case dismissed then, the complainant will not be permitted to dismiss his bill. To hold otherwise would be to do away with the general rule altogether, and to make the question simply one of discretion on the part of the court. Where...