Cox v. Mayor of Griffin , 17 Ga. 249 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] In noticing the first point made by the plea in bar to this bill, it is only necessary to say, that the withdrawal of the claim which had been interposed by the predecessors of the defendant in error, previously to the filing of their first bill, did not affect their right to file that bill, as is insisted by the plaintiffs in error.

[2.] Nor did the dismissal of that bill, upon which an injunction had been granted, deprive them of the right to obtain a second injunction. For by the Act of 1842, the issuing of a second injunction is placed expressly within the discretion of the Judge of the Superior Court.

[3.] It is next insisted by the plea, that there was an abandonment of the bill which had been filed in Pike County, “ as in cases of retraxit;” and therefore this bill could not be sustained.

What is a retraxit ? Sir Edward Coke says, that it is where the plaintiff “ comes into Court and confesses that he will not prosecute his suit, but from the same withdraws himself.” (Co. Litt. 139 a. 3 Ch. Pl. 477. Evans vs. McMahan, 1 Ala. 47.)

Sir William Blaelcstone tells us in few and simple words, that “ a retraxit is an open and voluntary renunciation of his suit in Court” by the plaintiff. He adds, “and by this he forever loses his action.”

The facts of this record all show, that neither the complainants nor their predecessors, in the solemn and formal way necessary to a retraxit, have said they are unwilling to prosecute their suit; have in open Court voluntarily renounced their suit.

It is true, that the Judge of the Superior Court of Pike County, at. April Term, 1852, granted an order nisi, directing' that the papers in the cause should be returned to the Clerk of the Superior Court of Spalding County, upon payment of' costs, in order for trial at May Term of said Court next thereafter ; and that in case they should not be returned as directed, that at the ensuing term of the Superior Court in Pike County, the same should be dismissed from the dockets of the Court as in cases of retraxit. Rut it is also true, that at that term the case was not dismissed “as in cases of retraxit,” but it appears, by the record, that a general order was granted, directing “that said cause be dismissed, and the injunction be dissolved,” &c.

Even if the Court had granted the order absolute, in terms of the first order, and had directed the case to be dismissed “ as in cases of retraxit,” this could not have made it a case of retraxit, if the complainant were not in Court voluntarily renouncing the suit. This is too plain to need further comment.

[4.] The defendants also insist, by their plea, that the complainants, as a corporation, have no right to take and hold trust estates; that they have no interest in this real estate levied upon; “ are interlopers,” and therefore have no right tO' bring this suit.

This position, if appropriate matter for a plea under different circumstances, is probably objectionable here, because, as we are inclined to think, it renders the plea, as a whole, bad for duplicity. The office of a plea is to bring forward new matter displacing the equity, and which reduces the cause, or the part of it covered by the plea, to a single point. (1 Atk. 54. Mitf. P. 295.) Rut here, defences are introduced, distinct in their characters.

However this may be, this portion of the plea is bad for another reason. If not in the nature of a demurrer, (which we are inclined to think it is) it is what is denominated a negativa plea — that is to say, a plea negativing material facts set forth in the bill, necessary to the complainant’s title, and of which a discovery is sought. In such case, it must be accompanied by answer. (Story Eq. Pl. 672. 2 Dan. Ch. Pr. 112, 113.)

The defendants’ interests need not suffer by this rule; for if this feature of their defence be of any importance to them, it .is easy to incorporate it with the answer.

Judgment affirmed.