Syndics of Brandt v. Shaumburgh

Martin, J. delivered the opinion of the court. The trial of this case was proceeded on. Both parties introduced evidence: And the court decided, that it should lie over, for consideration. Four days after, on the motion of the plaintiffs’ attorney, it was ordered to be discontinued. The defendant appealed. The appellant’s counsel urges, that the district court erred, in allowing the discontinuance. [699] The appellees insist, that no appeal lies from an order to discontinue a suit. That the discontinuance was properly granted; and that, if any judgment is to be given here, it must be for the plaintiffs. An appeal certainly lies from the grant of a discontinuance ; for the defendant is thereby prevented from obtaining a decision of the suit. The order is a judgment, which is final in the suit; for it puts an end to it, as a judgement of non-suit. The defendant does not appear to have resisted the motion of the plaintiffs’ attorney; and if he did hot, the court might well grant it. "We must not presume that the district court would receive, and grant, such an application, in the absence of the opposite party : For this would be wrong, & in judiciis omnia recte acta presumuntur. If the contrary did happen, an application to set the discontinuance aside ought to have been made; for otherwise we are to believe, that the application was either not resisted at all, or if resisted, was so upon proper gronnds. Besides, it was the duty of the appellant to have caused a statement of the grounds on which the district court proceeded to appear, and they do not. Livermore for the plaintiffs, Hoffman for the defendant. It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed, with costs.