Mechanics' Bank v. Fisher

Smith, J., (after shortly stating the facts,) delivered the opinion of the court. ,. . I consider the discontinuance of this suit, on the 28th day of July, 1828, by Charles Snider, irregular and void. ' The authority to discontinue, was to Obed Fahnestock, perspnally, and ought to have been strictly .pursued. Charles Snider had no authority from the bank to discontinue their suit, or move in the action; he, in fact, in this respect, was a stranger to-the bank; and at the time he'recorded, or entered the discontinuance, had nothing before him, showing any authority to him for doing so. If so, his act was void, and could not operate as.a discontinuance of the suit. The right of a party to discontinue his suit, under proper restrictions, is not denied;-indeed, generally speaking,’ if is the right of the-party, but is not always a matter of course, for the plaintiff will not be permitted ,to discontinue where he will gain an advantage by it; nor will' he be indulged in doing so, if prejudicial to his opponent, or when le.ading to vexation or oppression. In England, in the King’s Bench’ and Common Pleas, it is generally done by obtaining.a side .bar rule 44 for leave to discontinue the action upon the payment of costs.” But from the case, of Belchier v. Gansell, reported in 4 Burr. 2502, not cited at the bar, it is dear, that the rule to discontinue will not be granted, if it be -intended to oppress the defendant by another suit. To me it appears, the case’of Belchier v. Gansell, if not exactly the same as the one before us, is very analogous to it. . In that case, a discontinuance had been entered on- a side bar rule, and.then the plaintiff arrested the defendant again on the very same bonds, only laying the new suit in Middlesex instead of Bondon; but on motion, the discontinuance-was set aside, on the ground, that it was a trick, and an unwarrantable-conduct- in' the attorney, and that it ought not to have the intended effect. In this country, in our own courts, the law is established in the same way, In Pollock v. Hall, 3 Yeates, 42, Chief Justice Shippen says, discontinuances are the acts' of th.e court, and subject to their discretion. And in Broom v. Fox, 2 Yeates, 531, the court say, [347] a Regularly, there can be no discontinuance without-leave of .the court.” In addition to these-cases, there are others, which, by a parity of reason, bear on the present case. In Wikoff v. Perot, 1 Yeates, 38, and Jackson v. Winchester, 2 Yeates, 529, it is decided, that the' defendant cannot withdraw his plea, at the time of trial, to give him the benefit of the conclusion to the jury, without the leave of the court; or, wherever trouble or expense hias been incurred by any plea of the defendant’s, the.court will not give leave to retract the plea. So,.in M'Cullough v. M'Cullough, 1 Binn. 214, after an inquest has returned, that the rents and.profits will pay in seven years, the plaintiff eannot discontinue his Fieri Facias, and take out a new one, without leave of the court.- I take the result of this doctrine to be, that courts will protect their suitors from vexation, oppression, or an undue advantage, and will not suffer either party to. do any act which máy have this tendéncy. ■ In this case, the advantage the plaintiffs proposed to themselves, must be obvious to all, for by discontinuing the suit. in Dauphin _ county, where the defendant was at home, and by suing him immediately for. the same cause of action in Philadelphia, where the plaintiffs resided, they would, of course, get rid of some inconvenience, expense, and trouble; to all which, the defendant would necessarily be-exposed, if compelled to attend at Philadelphia.- I would then ask, was this not a contrivance, or an attempt on the part of the plaintiffs, not only to gain an advantage over their opponent, but was it not also calculated to vex, and oppress, and expose him to unnecessary expense and inconvenience? Whenever, therefore, it appears a party discontinues one suit, for the purpose, merely, of instituting another for the same cause of action elsewhere) the court, on motion, will-set aside the discontinuance, and reinstate the former suit, and subject the party to the. consequences of his. own acts. Here the plaintiffs had chosen the place and the tribunal where, and before which, to sue their debtor; having done, so) the defendant, on his part, as he had a right, moved in the suit, and filed his determination of record to have the suit decided by arbitrators, of which, he noticed the. plaintiffs; but, béfore he had'returned home from this service, the plaintiffs .gave directions to discontinue their suit: it was discontinued by one not authorized, and .without the permission of the court. Under these circumstances) I am not disposed to favour the discontinuance of a suit. The rule to arbitrate was not stricken from the record, but remained on the-same when the discontinuance was entered. In the case of Landis v. Bigler, (I believe not reported,) in which a rule to arbitrate had been taken out, but never acted, on, but still remained on record, and the casé afterwards tried, and a verdict and judgment rendered for the plaintiff, this court, on error, reversed the judgment, declaring the law to" be, that whilst the rule to arbitrate remained, the cause was out of court. If this be so, and the discontinuance of a suit .be the act of the court, then there could be no discohtinuance in the suit before [348] us., The arbitrators were afterwards appointed and met, (the bank having been previously duly notified of the time and place of their meeting,) made an award, and filed the same of record, according to law. The act of assembly, under which these proceedings'were had, directs, that the report of the arbitrators shall be entered on the docket of the prothonotary, and from the time of such entry, shall have the effect of a judgment against the party against whom it is made, ánd be a lien on the party’s real estate, until such judgr ment be reversed on an appeal; and the appeal is .to be made within twenty days after the entry of the 'award.' In the case before us, the plaintiffs did'not appeal; but'oh the,8th day of Jlpril, 1829, moved the Circuit Court to strike off the rule of reference, and the subsequent proceedings, which motion the court-granted. Upon the whole, then, this'court is of opinion, that .where it appears a discontinuance is entered with a view to vex and oppress a defendant, by suing him elsewhere for the same cause of action, and the party,, under such circumstances, applies to the court to sanction the discontinuance of the suit, and set aside all subsequent proceedings in the cause, the application should not succeed, unless founded in justice and equity; and not, as in the present case, where an advantage is the.obvious, and necessary-consequence to the plaintiffs, and great-expense, besides-inconvenience to the defendant. The judgment is, therefore, to be, reversed, and the award to stand. Judgment reversed.