La Tourette v. Fletcher

Mr. Justice Shepard delivered the opinion of the Court: The general right of a complainant to control his bill and to dismiss the same at his will, is not involved in this case. Even in the case of a creditor’s bill, it has been generally held that it is subject to the control of the complainants therein, and may be discontinued at any time by [328] them, upon satisfaction of their demand, before a decretal order shall have been made in the proceeding. 1 Daniel Ch. 793, 794; Beach, Mod. Eq. Pr. sec. 455; Innes v. Lansing, 7 Paige Ch. 583; Mattison v. Demarest, 1 Robertson (N. Y). 717. In the case, however, of a general creditor’s bill brought on behalf of all creditors who may thereafter come in and make themselves parties, or where other creditors have come in and joined in the prosecution of the bill by leave of the court, there is a strong tendency, and upon good reason, to deny the right of the original complainant to do more than discontinue the action as to his own claim, and the special relief to which he may be entitled thereon, especially where the rights of intervening claimants might be prejudiced thereby beyond the necessity merely of instituting an independent suit. Thompson v. Fisler, 33 N. J. Eq. 480. All authorities concur in holding that the discontinuance, in order to be binding, must have been procured without fraud. This case is peculiar in that the complainant in the original and in the supplemental bill is the same person, though represented by different solicitors, and urging in each a separate and distinct demand. It is apparent that Mr. Garnett, the solicitor in the original bill, di.d not intend to prejudice the claim under the supplemental bill. He had undertaken to collect the judgment recovered by him, and nothing more. He was bound to receive the money when tendered in payment thereof, and made the stipulation at a time when no one else and no other claim were involved. His intention was to enter his own judgment as satisfied, and to give an order to the clerk that the suit was dismissed “so far as he was concerned.” He intended to notify Mr. Minor, the solicitor in the supplemental bill, of the situation before any action was had, in order that he might protect the interest of his client as represented in the latter bill. Had the clerk been notified of the exact condition of the matter, or had Mr. Minor been informed of the contemplated action in time to notify the clerk, it is more [329] than probable that he would have declined to enter the order of discontinuance without an order of approval from the justice assigned to the special equity term of the court. Had the matter been referred to the court no doubt an order of dismissal may have been entered as to the part of the suit represented by Mr. Garnett, and the cause ordered to proceed as to the demands in the supplemental bill and as to the intervening bill of the other creditor, Marie Louise Apgar; and such amendments may have been made to the bill as to conform it to the changed conditions. It is evident also that the motive of the appellant was an unfair one. Whilst endeavoring to raise the money to pay off the small claim of the original bill, he was endeavoring also to prevent the filing of the supplemental bill by false promises of payments and arrangements for payment. During this time he executed another trust upon the property; the proceeds of which, if any, were not used in payment as he had promised. The arrangement for the conveyance to Davis of all the property, and for his conveyance in trust to secure negotiable notes for $4,000, had all been completed- and the papers prepared and exécuted ready to be filed for record, as they were, immediately after the discontinuance was entered. If the discontinuance were permitted to stand and the appellee forced, in consequence, to commence an entirely new proceeding, the execution, delivery and record of the conveyance aforesaid might be found to have prejudiced his rights materially; at least, the conditions would be altered to his probable prejudice by the intervening changes in the title and in the necessary parties to the litigation. Without intending to intimate, so far as the grantees in the intervening conveyances, and those who may claim under them, are concerned, that the same were devised for the purpose of defrauding the appellees or other creditors, if any, and therefore created no new rights, we are clearly of the opinion that there was no error in vacating the general order of discontinuance and reinstating the cause for [330] further proceedings as if that order had never been entered. Nor are we to be understood as anticipating any defences that any of the parties may make, or the assertion of any rights that they may claim under the conveyances aforesaid based upon the probable effect thereon of the order of discontinuance that has been vacated. These may be matters of future consideration; they are not now involved. The order appealed from must be affirmed, with costs to the appellees. It is so cn'dered.