Dawson v. Amey

Bird, Y. C. The complainant asks to have his bill dismissed, on payment •of all costs to defendants. The defendants resist this, and say •that they are entitled to go to hearing on the answer, and answer by way of cross-bill, which they have filed. They claim that -they are entitled to relief as against the complainant, and that it would be doing great injustice to them to dismiss the original bill. Since no testimony has been taken, I think the motion must be granted. But granting the motion to dismiss the original bill does not necessarily carry the cross-bill with it. See Dan. Ch. Prac. & Plead. (5th ed.) 1553 note 3 and cases cited. Since the defendants resist the motion, for the reason that they •are entitled to relief, as they claim, and since the charges in their cross-bill are important and may possibly be the grounds of relief, I will advise that the cross-bill and answer thereto be retained, with leave to either party to come in to ask for further relief, as the circumstances may require. But I will advise that the original bill be dismissed, upon the payment of all the costs heretofore incurred by defendants.