Opinion
3 Div. 287.
June 8, 1939.
Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.
McCorvey, McLeod, Turner Rogers, of Mobile, for appellant.
The amendment offered after motion to dismiss without prejudice was attempted to be withdrawn; if in fact allowed by the court it was improper in view of the motion to the effect that the amendment was not offered in good faith. No opportunity was had by respondent to demur to the amended bill. In the state of the record a dismissal without prejudice deprived respondent of substantial rights he had won up to that point in the litigation, namely, the several interlocutory decrees. It was not within the discretion of the circuit court to dismiss without prejudice, and such action is subject to review by this court. 16 Cyc. 469 (D); Collins v. Smith, 155 Ala. 607, 46 So. 986; Pl. Pr. in Eq. 330; Lang's Heirs v. Waring, 25 Ala. 625, 60 Am.Dec. 533; Strang v. Moog, 72 Ala. 460; McDonald v. Mobile L. I. Co., 65 Ala. 358; Chauncey Rule 28; Crowson v. Cody, 215 Ala. 150, 110 So. 46; Ritter v. Moseley, 226 Ala. 648, 148 So. 143; Rumbly v. Stainton, 24 Ala. 712; Cowan v. Jones, 27 Ala. 317; Gilmer v. Morris, 80 Ala. 78, 60 Am.Rep. 85; Cornelius v. Cornelius, 31 Ala. 479; Segrest v. Segrest's Heirs, 38 Ala. 674; Howard v. Bugbee, 25 Ala. 548; Dailey v. Koepple, 164 Ala. 317, 51 So. 348; Elmore County v. Tallapoosa County, 222 Ala. 147, 131 So. 552; Coleman v. Butt, 130 Ala. 266, 30 So. 364; Thompson v. Johnson, 201 Ala. 315, 78 So. 91; Gardner v. Knight, 124 Ala. 273, 27 So. 298; Chicago A. R. Co. v. Union R. M. Co., 109 U.S. 702, 3 S.Ct. 594, 27 L.Ed. 1081; Detroit v. Detroit C. R. Co., C.C., 55 F. 569; Keown v. Keown, 231 Mass. 404, 121 N.E. 153; Hershberger v. Blewett, C.C., 55 F. 170; Mayfield v. Wernicke Chem. Co., 65 Fla. 113, 61 So. 191, Ann.Cas. 1917A, 1193; Electric Acc. Co. v. Brush Elec. Co., C.C., 44 F. 602; Kursheedt Mfg. Co. v. Rosenzweig, 189 App. Div. 217, 178 N.Y.S. 430; Decker v. Caskey, 1 N.J. Eq. 427.
Ball Ball, of Montgomery, for appellee.
Complainant in an equity suit may dismiss his suit at any time before the hearing on payment of costs, unless the defendant has acquired some rights which might be lost or rendered less efficient by the discontinuance or dismissal, and there must be some plain legal prejudice to the defendant. Ex parte Conradi, 210 Ala. 213, 97 So. 569; Hale v. Hale, 201 Ala. 28, 75 So. 150; Danforth v. Herbert, 33 Ala. 497, 498; Ex parte Jones, 133 Ala. 212, 32 So. 643; Strang v. Moog, 72 Ala. 460; Burgess v. American Mortg. Co., 119 Ala. 669, 24 So. 727; Collins v. Smith, 155 Ala. 607, 46 So. 986; Cameron v. Abbott, 30. Ala. 416, 417; Harris v. Carter's Adm'rs, 3 Stew. 233; Adams v. Powell, 225 Ala. 300, 142 So. 537; 18 C.J. 1158, 1159, n. 38; 18 C.J. 1201; 21 C.J. 639; 69 C.J. 1318; Sm. Ch.Pr. 367, § 553; Rose v. Gibson, 71 Ala. 35; Johnson v. Gerald, 216 Ala. 581, 113 So. 447, 59 A.L.R. 348. The submissions in this case from time to time were on demurrer, the decrees were interlocutory, not final. It was never at issue on the merits. Chancery Rule 28 is without application. Kelly v. Griffin, 165 Ala. 309, 310, 51 So. 789; Boon v. Riley, 171 Ala. 657, 54 So. 997; East v. Saks, 214 Ala. 58, 106 So. 185; Ritter v. Moseley, 226 Ala. 648, 148 So. 143.
This is the fourth appeal in this case, and the question of the right of the appellee in this appeal to have specific performance of the contract has been passed on adversely to it by both sections of this court. Coral Gables, Inc. v. Patterson, 231 Ala. 649, 166 So. 40; Id., (Second Appeal), 233 Ala. 602, 173 So. 4; Id., (Third Appeal), 236 Ala. 201, 181 So. 236.
There is nothing in this record to show why the bill should not be dismissed generally as to the right of specific performance. The last amendment, as the record conclusively shows, was not offered for the purpose of aiding the bill and presenting an issue of law or fact for decision by the court. Crowson v. Cody, 215 Ala. 150, 110 So. 46.
In Ex Parte Jones, 133 Ala. 212, 32 So. 643, the complainant had his bill dismissed on application to the register in vacation under the provisions of section 703 of the Code 1896, section 6555 of the present Code, 1923. That section provides: "But the defendant, at the next succeeding term of the court, may show cause against the dismissal, and procure a vacation of the order."
The decree of the circuit court is corrected, so as to dismiss the bill generally as to the right of the complainant to compel specific performance of the contract set forth in the bill. As to the appellee's right to pursue other remedies the dismissal is without prejudice. Cornelius v. Cornelius, 31 Ala. 479; James A. Keown v. Mary E. Keown, 231 Mass. 404, 121 N.E. 153.
Let the appellee pay the costs of the appeal.
Corrected and affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.