Adkinson v. Gahan

Per Curiam : Upon motion of the appellant, supported by a stipulation signed by the parties to the record, this appeal is dismissed at the costs of the appellant. Since the motion and stipulation were filed, an affidavit of certain citizens of the town of Lake who are interested in the questions involved in the litigation, has been filed in opposition, and we are asked, therein, to deny the motion. The affidavit states that the stipulation to dismiss is the result of a collusive and fraudulent agreement between the parties. It must be borne in mind this is not a suit to enforce public rights, but one in which the rights of private parties (i. e., those to the record,) are alone concerned. The interest of the public is purely incidental,—an interest in the settlement of a legal principle,—just as may happen in any suit between private parties. But in all such cases any other party is at liberty to commence a suit and litigate the same question, if the suit first brought be dismissed before it is there settled. No one but the parties to the suit is liable for the payment of the costs, or directly affected by the result of the dismissal. Suppose we were to overrule the motion, who is responsible for the additional costs that may be incurred ? No indemnity is given, or could legally be required to be given, the appellant, against the additional costs. We are aware of no practice by which a party can be compelled to continue the prosecution of a private suit against hisa will and at his own expense. If, while the suit was pending, it had been alleged and proved that the suit was collusive, we would have dismissed it, promptly, out of court. But ceasing to prosecute an appeal,—ceasing to ask the aid of a court,—is a different thing. Any party who wishes to re-litigate the questions involved in this record is at perfect liberty to do so. No one was under obligation to await the issue of this litigation for a settlement of those issues, and no one has any vested right in the appeal of the appellant. The appeal is dismissed. Appeal dismissed.