The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1892-12-09
DONE IN THE COURTS.
An important Opinion Handed
Down in Circuit Court.
MAS. WARNER GETS A DIVORCE.
r. Took Only Eighteen Minutes to Get
Dccrec-Mrs. Armstrong; Woes
New Suits-The BIotter.

In the United States circui court for the dis.
es4ct Of Washington, Northern division, District
Judge Hanford rendered the following opinion
In the case Of Sarah Harshbergcr ct al. W. Ed
yard Blewett ct al:
In Equity. Motion by plaintifs after issue
toined to dismiss without prejudice; denied.
I. b. Hardin, for plaintiffs; 7. R shepard,
for defendants.
HAyroaD, District Judge.
The original bill in this case was died An.
rust Q, 1890. Alter hearing the Of
counsel thereon q demurrer to said orig nal bill
BIZ leave of court an amended bill was subse-
cuently filed and a demurrer to the same was
argued and overruied. The defendants have
answered and exceptions TO their answers have
been submitted to the court and overruled. The
case was at issue on the I'd day OF July, 1892, on
which days general application was died. More
9Th, 1892, the compliments hlcd a motion to dis
miss without prejudice on payment of the costs
without assigning a reason for dismissing. No
evidence has been taken and no application has
taking evidence. Tho defendants oppose the
motion on the ground that the plaintiff claim
affects the title to Denny Il Hoyt's addition to
the city of Seattle (the premises in which the
plaintiffs claim 70 have An interestl, and pre-
vents the sale OF lots therein. and that any dis
position OF the case which will leave the contro-
versy open to future litigation viii be a serious
injury to them and 20 every owner OF property
IN said addition.
BY the courts decisions of the questions
which have been argued and decretai orders,
the claims and rights OF the parties have been
adjudieafed. The defendants have been put to
expense in making their detenses and in my
opinion they are now entitled to secure by a
NAL decree the fruits of the litigation. The
motion TO dismiss without prejudice / regard as
request to the court for its consent to the use
Of judicial process for the mere purpose Of
harrassing aud depressing the defondnnts. To
grant the motion The court will have TO make q
record which will be equivalent TO . public an
nouncement that the plaintiffs have leave to
renew in this court the attack upon the title to
the premises, and a warning to every person
who buys o. improves q lot In said addition
that the expen- Q OF defending against such at
tack may be forced upon him or her whenever
the plaintiff shall be 80 minded.
The authorities cited do not sustain the solicit
tor for plaintiffs in maintaining that in equity q
Plaintiff may dismiss without prejudice and
without consen. OF the defendant. at any stage
of the case, upon payment of coats In section
29l OF Fosters Federal Practice the learned
decree or decretai order, a plaintiff can usually
obtain Q dismissal upon payment OF the costs of
such OF the defendants as have appeared: but
not. Il they or any Of them would be Injured
order, however. the plaintiff may not discon-
.tinue without the consent of all parties who
hsve acquired rights by the decree"
TIE same rule Is given ia ] Daniels CHI. Pr.
18th ed 793. which 10 another of the authorities
cited by plaintiffs solicitor. aud the same chap
Ter on page 100 contains the very explicit state
tiat, ucles however,, tuGrc mas Deeu
any proceeding in the cause which has given
the defendant a right against the plaintiff, the
piaiatin cannot dismiss his bill as of course;
thus. where a general demurrer had been over
ruled on argument. Lord Cotteuham was Of
opinion that the plaintiff could not dismiss his
hi! Is OF course: the defendant having q right
TO Al peal against the order overruling the de-
nurrer; which right he ought no, to be de-
prlved Of on ex.parte application"
House vs.. Mullen. % Wall, ~ is not in point,
but the case of the Chicago & Alton Railroad
Com pany ana Dnmont VS.. Union Rolling Mill
Company, 1o9 u. g., 100, is analogous. The de-
eision OF the supreme court in that case is based
upon the rules OF chancery practice given in the
chapter OF Daniels Chancery Practice above re-
serred to, and other authorities In harmony
herewith. After quoting from several. includ-
ing the decision in Watt VS.. Crawford, IL Paige,
ties. Mr.. Justice Woods, in the opinion of the
court. says: "The authorities cited sustain the
refusal OF the circuit court to allow Dumont to
clsm,,s n aSd Dill, ws.r ,,o Alter al these pro,
the parties was practically ended by the inter-
focutory decree of the court, the motion to dis
Mrs bis orig nal bill was made by Dumoht. the
psny Insisted that If the original bill, carrying
with II the cross bill, were dismissed its claim
would be barred by the statute OF limitations
IT would BE- hard To conceive OF a clearer. case
fer the application of the rules laid down by the
authorities we have cited. II the court, under
these circumstances, had allowed the original
bill TO be dismissed without the consent OF the
rolling mill company Ii would have inflicted a
pairable wrong on that company and trifled
with the administration OF Justice"
The remarks quoted are applicable to this case.
Although no cross bill has been fled the case is
Dot so materially different on that account as to
require the application OF n different legal priu-
erie. The fling of a cross bill would not ips0
laco deprive the court OF discretionary power to
dismiss without prejudice. No evidence has
been taken, but the evidence is shut out by the
rules, and the controversy between the parties
has been practically ended by the interlocutory
DEGREES upon the demurrers and exceptions TO
The answers. 1t is my opinion that the defend
sais are now entitled to have the cause set
down for hearing upon the bill and answer,
Unless the court snail for good cause grant an
application TO enlarge the time for taking evil
aence according TO the rules. Fosters Federal
Practice, S,s2.
Il Nathan .tapfal