Opinion
No. 9.
December 10, 1938.
John Jennings, Jr., of Knoxville, Tenn., for plaintiff.
J.H. Hodges, of Knoxville, Tenn., for defendants.
Action by Ancil Ayers, administrator, against Mark S. Conser and wife. On defendants' motions to require plaintiff to pay costs of a prior action voluntarily dismissed, require him to make a cost bond or show that all attorneys are without interest in recovery sought or join in pauper's oath, strike certain paragraphs from the complaint, and grant other relief.
Motions granted in part and denied in part.
This case is before me for action on a number of motions.
A motion to require the plaintiff to pay the costs of a prior action voluntarily dismissed wherein the cause of action and the parties were the same as in this case. This motion is addressed to the sound discretion of the court. Rules of Civil Procedure for District Courts, rule 41(d), 28 U.S.C.A. following section 723c. It appearing in open court by statements of counsel for plaintiff that the action was dismissed on account of the interposition by defendants of questions of fact affecting service of process, which conduct on the part of defendants was apparently to delay, if not wholly prevent, the bringing in of the defendants, I am of opinion that this suit should not be abated until the costs of the former suit are paid, and the motion so to do is denied.
Another motion is in effect to require plaintiff to either make a cost bond, or show that the attorneys are all without interest in the recovery sought, or that the attorneys themselves join in the pauper's oath, is well taken, and the action will stand dismissed unless within ten days one or the other of the above mentioned alternatives happens.
Another motion is to strike from the complaint a certain paragraph on page 6 and on page 11. The paragraphs referred to each commences with the words "The defendants" and ends with the words "this suit". The motion is well made, as the paragraphs complained of are no part of the statement of the cause of action. They will be stricken as part of the pleadings, but not physically stricken.
The last motion relating to certain factual matters in connection with the statutory service is overruled.
All matters here presented, as well as the motion heretofore acted upon, which attacked the jurisdiction of the court over the persons sued should have been consolidated into one motion, and the court might have denied all motions filed subsequent to the first upon authority of Rules of Civil Procedure for District Courts, rule 12(b), 28 U.S.C.A. following section 723c.