Hammond v. Houston

By the Court.

Benning, J.

delivering the opinion.

Was the Court below right in refusing to dismiss the cross-bill, on the motion of Hammond, the complainant in that bill? This is the first question.

The general principle that a complainant has the right, at his pleasure, to dismiss or withdraw his suit, is not denied. But it is insisted that the facts of the case of this complainant, Hammond, make his case an exception to the general rule. The cross-hill shows, it is insisted, that subsequent to-the filing o'f the bill a settlement of most of the matters contained in the bill had taken place ; that the complainant in the cross-bill, Hammond, was dissatisfied with the settlement and wished it rescinded; and that, offering to put things in the state in which they were before the settlement as far aá possible, he prayed for a rescission of the settlement; and that to put things in that condition, would require the restoration to the complainants of certain property or certain rights which they had relinquished in the settlement. In short, the cross-bill, the defendants in error say, contains an offer to rescind a settlement. And they argue that such an offer binds the party making it, so that he cannot withdraw it without the consent of the other party.

But is this true, unless the offer has been accepted? We think not. It is, in general, a first principle that to make any party to a contract bound, all the parties must be bound. Were the defendants in the cross-bill bound by the offer of the complainant in that bill to rescind the settlement, whether they accepted the offer or not ? Certainly not. Neither, therefore, was he bound by it unless there is something to take the case out of the general principle. And we see nothing to take the case out of that principle.

The question, then, becomes this: had the defendants in the cross-bill accepted the offer of rescission at the time when the complainant in that bill moved that the bill should be dismissed?

So far from having done so, they had demurred to the bill’ containing the offer — that is, they had, themselves, prayed the Court to dismiss the bill, and thereby had prayed the Court to render the offer nugatory.

The defendants, then, had not accepted the offer, but had' virtually rejected it.

This being so, the offer was not binding on the complainant..

But if it was not, then it is clear from what has been said,, that he had the right to an order dismissing his bill.

[1.] We think, therefore, that the Court below erred in> ■ not granting the motion of the complainant in the cross-bill * to dismiss that bill.

If the offer in that bill had been accepted and acted on-so acted on that not to hold the party making it bound by it ■ would be the occasion of loss to the opposite parties, then our • conclusion might have been different.

The leave granted to the complainants in the bill to amend the bill, was merely superfluous. Whatever right it could confer had been conferred — conferred without it by the-Amendment Act of 1854. (Acts of 1854-48.)

The parties plaintiff to the bill at the time when it was filed, were Sloan and Wife and Benjamin C. Houston. After-wards, and it seems before the filing of the answer, Houston died. At March Term, 1856, some two months and more-after the answer had been filed, Mary R. Houston was made a party in place of the deceased, Benjamin C. Houston. As soon as this was done, the place of the plaintiffs thus being full, they asked leave to except to the answer. Leave was, granted to them to do so, with the privilege to the defendant to name the time within which the exceptions were to be filed. The defendant declined to avail himself of the privilege, and the Court itself named three months. Was this wrong in the Court? We think not.

The complainants in the bill had elected to sue jointly. They had the right to do so ; and but for our Statute of 1836, [Cobb’s Dig. 468,) it would have been their duty to do so.. When one of them died, it was therefore the right of the-others to have his place filled, if practicable, before they could be required to go on with the suit.

This being so, the failure to except to the answer until the fourth day of the term next following the filing of the answer,. 'was not evidence of laches. Certainly Mrs. Houston could •not have excepted at any time before the time at which she asked leave to except. And the other plaintiffs had the right ’to stand by her side.

The fourth Equity rule was never construed as applicable to cases in which the ordinary course of an Equity suit has ¡been interrupted by a death or a marriage.

But with respect to that rule, it is to be remembered that ’this Court has decided, that so much of it as requires the answer to be filed within four months from the adjournment of the Court to which the subpoena is returnable, is contrary to the 68th section of the Act of 1799, a part of which is as follows : “ and the party against whom such bill shall be filed, .shall appear and answer to the same at the next Court.” (McDougald vs. Carey, 12 Ga. R.)

The time of excepting appointed by the rule was, no doubt, ■appointed with reference to the time of answering appointed by the rule. The rule falling as to the latter, must therefore, •it would seem, fall as to the former.

The complainants, then, at the time when they asked leave ;to except, were in order to ask the leave.

That being so, could the defendant expect more than the privilege of naming the time within which the exceptions were to be filed ? Surely not. And when the defendant declined to name a time, it was quite proper for the Court, in itself, appointing a time to consult the convenience of the opposife parties.

[2.] The Court, therefore, we think, committed no error •in granting the leave to file exceptions within three months.