Schlagenhauf v. Craven

Geev, Y. 0. There can be no question that the defendants, when they paid the original complainant’s claim and tendered his costs to his-solicitor, were, at that time, entitled to have the bill of complaint dismissed. The satisfaction of the complainant’s claim left nothing in this court in this cause upon which, under any circumstances, there could be any further litigation. Nothing remained to be done but to make an order dismissing the cause, which was a mere formal recognition of the fact that this suit had ended. The defendants gave notice of an application to-the court for such an order formally dismissing the bill. They were then entitled to such an order. Afterwards, new parties-applied, without notice to defendants, to be admitted as com [235] plainants, and without disclosure to the court of the fact that the defendants, by paying the claim of the original complainant, had theretofore settled the cause. The question presented by the defendants’ notice to dismiss the bill is, were they entitled to an order of dismissal at the time they gave the notice? Equity looks upon that as done which of right ought to have been done. In analogy to this maxim, the. defendants, having been entitled to the order of dismissal when they gave notice of their motion for it, ought not to be defeated of their right by the subsequent ex parte action of strangers to the suit. Eor though the bill of complaint is an open bill, for all creditors who should join in the suit and agree to pay expenses, the new complainants had not, when the original complainant’s claim .was satisfied and notice given of application to dismiss the bill, established their rights as creditors by recovering any judgment against the defendant Graven. To allow them the status of complainants in a cause which had, in fact, been settled before they had any judgment, might work great injustice. The defendants may have conveyed the lands for consideration without notice. They may have obtained the money to satisfy the complainant’s claim by an assurance, true at the time, that no other judgments were then asserted against them, and that they could lawfully convey or mortgage the lands in dispute to secure advances. It is difficult to determine what status the new complainants can secure in a bill of complaint in which there is neither allegation of their claims, nor even mention of their names. Their own petitions show that, when the bill was filed, they had no judgments, and could not then have been parties, and therefore cannot be held to have been within the class for whom the bill was held open, unless it be accepted that creditors, whose claims have not been established by judgments or some other lien, may come into this court as complainants. The contrary has been the rule of this court. The court of appeals, in Haston v. Castner, 4 Stew. Eq. 698, declared that it could not be denied that the creditor must first-have established his claim. Chancellor Runyon, in Haggerty v. Nixon, 11 C. E. Gr. 42, refused relief to [236] such a general creditor when joined with a judgment creditor as complainant. The defendant is entitled, upon payment of the taxed costs of the complainant into court, to have an order dismissing the bill of complaint. The defendant is allowed the costs of his motion.