Eastman v. St. Anthony Falls Water Power Co.

By the Court. Ripley, -Ch. J. Whether the proceedings of appellants’ attorney would in any case amount to a dismissal of the action under Gen. Stat., ch. 66, sec. 242, it is not necessary to determine. Those proceedings, in connection with the statements of the proposed supplemental complaint, make it obvious that the parties meant to and did settle the suit, not that appellants should dismiss it under the statute. Upon such a dismissal, defendants would be entitled to costs, but here, all matters of difference between them in said action had been settled. No ground remained whereon either could take any step against the other. As between thorn the suit was taken out of court. This they had a perfect right to do so far as they themselves were concerned. They could not, of course thereby affect the rights of [51] others. Wood vs. N. W. Pres. Ch. 7, Abb. Pr. Rep. 210, note. We think the district court was clearly right in denying the motion for leave to file said supplemental' complaint. It stated a new cause of action accruing after the settlement of the suit, viz: a cause of action to vacate the settlement because of mistake. 1 Daniel Ch. Pr., p. 670; 2 Story Eq. Jur., s. 15, 21 a; Brookshank vs. Smith, 2 Yourge & Collier 68; Herenden vs. Ld. Annesley, 2 Sch. & Lefroy, 637. A supplemental complaint must be for the same substantive cause of action as that set out in the original complaint. Bardwell vs. Ames, 22 Pick. 375; Jaques vs. Hall, 3 Gray 194; 3 Dan. Ch. Pr. 1594, note. McCollough vs. Colby, 4 Bosw. 603. If the appellants have the right to vacate this settlement, the use of the water power by defendants, which since said settlement has been lawful, may become unlawful and appellants entitled to relief in respect thereof. It may be, too, that such relief should in part consist of the reinstatement of this suit, and allowing appellants to proceed therein. But when the right to such relief can only arise upon an abrogation of such settlement for the cause in said supplemental complaint stated, to allow the appellants to proceed therein by filing this complaint, would be, in the language of the disHct court, to abrogate the settlement in advance. Order affirmed