Litton v. Armstead ( 1876 )

Deaderick, C. J.,

delivered the opinion of the court.

This bill was dismissed on motion, or discontinued, for two reasons set forth .in the order dismissing it:

1. It was not signed by counsel or by complainants.

It appears that on the back of the bill is written the name of A. A. Swope, solicitor, etc. The purpose of the signing of the bills by counsel, is, “to secure-regularity, relevancy and decency’'’ in allegations, and “responsibility and guaranty of his counsel,” and •a signing on the back has been held a sufficient compliance with the rule. Sto. Eq., pi. sec. 47. But it is more regular and proper that the signature of the solicitor should be upon the face of the bill. The bill, however, should not have been dismissed for such irregularity, which could easily have been cured by signing under the direction of the court.

2. That for several terms of the court, after the issuance of the subpoena to answer, which was returned not executed, no other process was issued to bring one of the defendants into court. As to some of the defendants, who were non-residents, publication had been duly ordered, and subpoena to answer issued for another. After the service of this last subpoena to answer, the notice was entered to discontinue because of the chasm in the process.

This is a good ground of discontinuance at daw, but not as to a bill in equity.

It was error to dismiss the bill, for the reasons stated in the decree, and the same will be reversed and the cause remanded for further proceedings.