Opinion
(December Term, 1833.)
As a plaintiff may in this State dismiss his bill without prejudice, the order for the hearing will, upon his application, be set aside upon the terms of his paying all the costs, without being reimbursed them in any event.
THE plaintiff, by petition, applied to have the cause remanded to Mecklenburg, for the purpose of enabling him to have the order for the hearing set aside, so that he might take further testimony.
Devereux for plaintiff.
Badger for defendant.
The facts were that the bill was filed in 1820, and alleged that in 1807 the plaintiff purchased the shares of Joseph and Jeremiah Wilson, who were defendants, in the land which descended to them and their other brothers from their father, and took deeds from them. That the defendant John, one of the brothers, after notice of the plaintiff's purchase, bought the whole land thus descended, under a fraudulent execution against the heirs of his father. That all the defendants refused to acknowledge the deeds to the plaintiff, which were then unregistered. The deeds were filed in the office for the inspection of the defendants, and to a special interrogatory as to their execution, the defendant, (386) John had answered that he knew nothing about them. His answer was filed in May, 1821. In November, 1823, the cause was set for hearing, and in November, 1828, was removed to this Court by consent. The petition was filed at this term, and it stated that the point to which further proof was wanted was the execution of the deeds to the plaintiff, which had been registered by an order of the county court, made in 1824, upon a probate taken in another state in 1807, which order and probate the plaintiff feared would not authorize the reading of them at the hearing.
In considering this application, the Court assumes that the deeds cannot be read in their present state, and we confine ourselves altogether to the inquiry, whether the party ought now to have an opportunity of supplying the defects in the probate, and, if so, upon what terms.
The rule of practice in the English chancery clearly forbids the opening of the order under such circumstances. But without condemning that rule, we are obliged to see that it would work great injustice to apply it in our courts as organized. Nor, perhaps, can we lay down any precise rule of practice for ourselves, considering the difficulty that parties are under in taking their proofs and preparing a case for trial. In the present case, however, the materiality of the proof has been so distinctly known to the parties, and the fact to which it relates so fully put in issue by the pleadings, that the subsequent and great delay is without excuse, and deprives the plaintiff of all right to ask for further delay but upon the hardest terms. Our only difficulty is whether we can grant it upon any terms. But as it is taken that in such a case the plaintiff might, according to our course, dismiss his bill (387) without prejudice, whereby he would render himself liable to the costs, the Court will grant the prayer of the petition, upon the payment by the plaintiff of the costs of that and of all the costs of the cause, of which no part will be reimbursed to him on the hearing, whatever may be its result. This indulgence is granted, because in effect it is dismissing the bill without prejudice, with this advantage to all parties, that a final decision upon the merits will be had much sooner than if the plaintiff were put to a new bill. The plaintiff may, therefore, take this order, or have the cause now heard, at his election.
PER CURIAM. Order accordingly.
Cited: Carleton v. Byers, 71 N.C. 333.