Federal Savings & Loan Ins. v. Reeves

RIDDICK, Circuit Judge. Petitioner seeks a writ of mandamus directing respondent to vacate a certain order entered in the case of Federal Savings & Loan Insurance Corporation v. First National Bank of Liberty, Missouri, denying the motion of petitioner to dismiss the action without prejudice, and further directing respondent to sustain the petitioner’s motion to dismiss. In its motion to dismiss the action, petitioner offered, as a condition for the granting of the motion, to pay the accrued costs, together with the taxable attorneys’ fees, provided in 28 U.S.C.A. §§ 571 and 572. The motion was presented to the District Court after the defendant in the proceeding had filed its answer to petitioner’s complaint. In an opinion filed at the time of the order denying the motion, respondent expressed the opinion, on the evidence heard on the motion, that the motion to dismiss should not be granted except on condition that petitioner reimburse the dc — 732 — fendant in the action for its expenses and attorneys’ fees incurred in the preparation for trial, in the taking of certain depositions, and on motions which had been presented in the case. Rule 41(a) (2) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that an action shall not be dismissed at the request of the plaintiff after service of the answer, • except by order of the court “and upon such terms and conditions as the court deems proper.” Under this rule the plaintiff does not have an absolute right to dismiss an action after service of an answer. In ruling a motion to dismiss after service of an answer the District Court exercises a judicial discretion. Home Owner’s Loan Corporation v. Huffman, 8 Cir., 134 F.2d 314, 316. Obviously, it was within the lawful discretion of the respondent to decide whether the dismissal of the case proposed should be allowed, and, if so, on what terms and conditions. It is elementary that mandamus can not be used to control the lawful discretion of a trial court (Frankel v. Woodrough, 8 Cir., 7 F.2d 796, 797; Los Angeles Brush Mfg. Corporation v. James, 272 U.S. 701, 705, 47 S.Ct. 286, 71 L.Ed. 481); nor to compel a trial court to reverse a decision which it has rendered on a question within its jurisdiction (Hosey v. Kennamer, 8 Cir., 21 F.2d 64.) Mandamus is not granted as of right, but its issue is a matter of sound judicial discretion. The writ may not be employed as a substitute for appeal. It is properly denied where the remedy by appeal is available, as it is here, in the event of a final judgment against petitioner in the District Court. Brictson Mfg. Co. v. Munger, 8 Cir., 20 F.2d 793, 794; Fred Benioff Co. v. McCulloch, 9 Cir., 133 F.2d 900; Roche v. Evaporated Milk Association, 319 U.S. 21, 28-31, 63 S.Ct. 938, 941, 87 L.Ed. 1185. As said in the opinion in the Roche case, the traditional use of the writ of mandamus “has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Petitioner relies on Ex parte Skinner & Eddy Corporation, 265 U.S. 86, 44 S.Ct. 446, 68 L.Ed. 912, and McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992, as authority for its contention that it is entitled as of right to a dismissal without prejudice upon the payment of accrued costs. Neither case supports petitioner’s contention. Ex parte Skinner & Eddy Corporation was decided before the adoption of the Federal Rules of Civil Procedure and at a time when a plaintiff had the absolute right to dismiss without prejudice upon the payment of accrued costs, and, hence, is not controlling here. The real ground for the issue of the writ in that case was to prevent “the Court of Claims from exercising jurisdiction, contrary to statute, over a suit which it had previously dismissed.” In McCullough v. Cosgrave, supra, the writ issued to prevent “the persistent disregard of the Rules of Civil Procedure.” Roche v. Evaporated Milk Association, supra, 319 U.S. at pages 31 and 32, 63 S.Ct. at pages 944, 945, 87 L.Ed. 1185. In the case before us the decision of the District Court on the motion to dismiss, whether correct or incorrect, was upon a question committed by law to its determination. The petition is denied.