Beardsley v. Administrators of Hatch , 11 Vt. 151 ( 1839 )

This was a question of practice. The facts appear from the opinion of the court, delivered by

Williams, Chancellor.

The bill in chancery, in favor of the petitioner, Beardsley, against the representatives of Knight &, Hyde, was heard and determined at the last term of this-court, and that case was continued only for the purpose of making the heirs of Hyde parties to the bill. 10 Vt. R. 185. Since that time the controversy has been settled, and the orator in this bill, Beardsley, and the representatives of Knight & Hyde, who were defendants, pray here to discontinue both the suit in chancery and also a suit at law against Hatch, another of the defendants, without cost. This application is resisted by Hatch. On referring to the case decided, we think that Hatch was properly made a party to that bill, and no costs would have been decreed to him if the suit had not. been settled. The application is so far granted that the suit in chancery may be discontinued without cost. But we are not inclined to make any determination as to the cost in the suit at law. If there were any grounds for prosecuting the claim of the plaintiff against the estate of Hatch, and for taking the appeal from the determination of the commissioners to the county court, that court may allow to Beardsley the cost of the appeal, as it is discretionary with them to tax cost for either party. If there were no such grounds, they may tax cost for Hatch. It is a subject which more properly appertains to the court who have that appeal before them, than to this court. The prayer of the petition will therefore be granted so far as to permit the parties to discontinue this suit in chancery, without cost, and without any prejudice to the claims of either party to cost in the suit pending in the county court on appeal from the commissioners on the estate of Hatch.