Banta v. Marcellus

By the Court, Willard, J. As this cause abated by the death of a sole plaintiff, before decree, the defendants could not revive the suit by bill of revivor. (9 Paige, 393. 2 Barb. Ch. Pr. 41.) Their only remedy is under the statute, (2 R. /S'. 185, §§ 118,119,) by petition to the court, for an order on the personal representatives of the deceased to show cause on a certain day to be named in the order, why the suit should not stand revived in their names, or the bill be dismissed, so far as the interests of such representatives are concerned. By the 119th section, the court is authorized, if no sufficient cause be shown to the contrary, to order the revival of the suit in their names, or the dismissal of the bill, with costs, or otherwise. In the present case, the personal representatives of the plaintiff show no reason why the suit should not be revived or dismissed ; nor why it should stand revived merely, and not be dismissed. They express no desire to prosecute it further; and indeed, concede that a further prosecution of it, by them, would not benefit the estate of their testator. Of course there is no reason why the other alternative asked by the defendants, should not be granted, and the bill be dismissed as far as the interests of the plaintiff’s personal representatives are concerned. [376] The statute has regulated the question of costs in analogous cases. Thus, it is enacted, (2 R. S. 613, § 1,) that upon the plaintiff in a court of equity dismissing his own bill or petition, or upon the same being dismissed for w*ant of prosecution, the plaintiff shall pay to the defendant his costs to be taxed, except in those cases where, according to the practice of the court, costs would not be awarded against such complainant upon a decree rendered on hearing of the cause. Prima facie, the defendants are entitled to costs on the dismissal of a bill. It is for the plaintiffs to bring themselves within some of the exceptions to the general rule, if they wish to escape the usual penalty. They have not done so in the present case, The judgment debtor, John Hagaman, having suffered the bill to be taken as confessed against him, and being insolvent, is not entitled to costs. The personal representatives of the plaintiff would not be bound to continue the prosecution of the suit against an insolvent, and especially where, for other reasons, the object of the suit could not be obtained by reason of facts which occurred, or came to the plaintiff’s knowledge, after the commencement of the suit. The practice of this court and the court of chancery was, in such cases, when the suit was commenced by executors or administrators, to allow them to discontinue without costs. (Arnoux v. Steinbrenner, 1 Paige, 82. Purdy v. Purdy, 5 Cowen, 14. Phenix v. Hill, 3 John. 247. Morse v. McCoy, 4 Cowen, 551.) It is desirable that the practice both at law and in equity should be the same; By adopting this course the practice on both sides of the court is made to harmonize. If the judgment debtor were entitled to costs, we should direct them to be offset against the judgment. But we think that as to him the bill should be dismissed without costs; The other defendants are clearly entitled to costs, to be paid out of the assets of the plaintiff John H. Banta deceased, in the hands of his ekecutors. The executors have done no act to make themselves personally liable out of their own estate. It has been insisted that costs of this application should not be allowed, because they are not asked for in the petition, nor in the order to shew cause. Costs are never given on a motion [377] being taken by default, unless asked for in the notice or order to shew cause. (Mann v. King, 18 Ves. 297.) But if the parties appear and litigate the motion upon the merits, costs are in the discretion of the court, whether asked for in the notice of motion, or order to show cause, or not. In the present case, the costs of the application are a part of the costs in the cause, and the defendants in whose favor they are awarded are entitled to them from the estate of the testator. The order therefore will be that the bill be dismissed so far as the interests of the executors of John H. Banta are concerned, with costs to all the defendants except John Hagaman, to be paid by the executors out of the assets of the said John H. Banta, which are now, or may hereafter be, in their hands to be administered, in the due course of administration. Order accordingly.