13 refused when the defendant by the dismissal would have lost the benefit of an adjudication made in the previous proceedings in the suit. Leave may be granted upon terms, as for example, that the complainant stipulate to allow defendant's evidence to be used in any subsequent suit.10 An executor or other person, who has filed a bill in a representative capacity in good faith with reasonable grounds for so doing, may be excused payment of costs." The motion for such an order should be upon notice.12 The same practice is followed when a plaintiff sues in behalf of himself and others, provided that no one has previously joined with him as co-plaintiff, unless, perhaps, others have contributed to the expenses of the suit and wish it continued.14 After other members of the class have joined as co-plaintiffs in the suit, the plaintiff cannot dismiss the bill without their consent. The majority of the stockholders in a corporation cannot always have a suit discontinued against the wishes of its directors.16 After a decree or decretal order, whether parol or interlocutory, the plaintiff may not discontinue without the consent of all parties who have acquired rights by the decree," *including creditors who have filed their claims pursuant to a direction in the same.18 The usual course pursued by one, in whose name without his consent a bill has been filed, is to move, on notice to the solicitor who appeared for him and to any other the parties who have appeared, to have it taken off the file.19 Upon this being done, he may recover from the solicitor who filed the bill,20 his costs, as well as any costs he may have been compelled to pay a defendant. A plaintiff cannot, 9 Hershberger v. Blewett, 55 Fed. R. 170, 172; Daniell's Ch. Pr. (5th ed.) 793. But see W. U. Tel. Co. v. Am. Bell T. Co., 50 Fed. R. 662. 10 Am. Z. Co. v. Celluloid Mfg. Co., 32 Fed. R. 809. 15 Belmont N. Co. v. Columbia L & S. Co., 46 Fed. R. 336. 16 Railway Co. v. Alling, 99 U. S. 463. 17 Guilbert v. Hawles, 1 Ch. Cas. 40; Carrington v. Holly, 1 Dick. 280; 11 Arnoux v. Steinbrenner, 1 Paige Hershberger v. Blewett, 55 Fed. R. (N. Y.), 82. 12 Am. Z. Co. v. Celluloid Mfg. Co., 32 Fed. R. 809; Gregory v. Pike (C. C. A.), 67 Fed. R. 837. 13 Hanford v. Storie, 2 Sim. & S. 196; Armstrong v. Storer, 9 Beav. 277. 14 Ex parte Railroad Co., 95 U. S. 221; Miller v. Liggett & M. T. Co., 7 Fed. R. 91. 170; Gregory v. Pike (C. C. A.), 67 Fed. R. 837; Garner v. Second Nat. Bank, 67 Fed. R. 833. 18 Johnson v. Miller, 96 Fed. R. 271. 19 Palmer v. Walesby, L R. 3 Ch. App. 732; Titterwan v. Osborne, 1 Dick. 350; Hood v. Phillips, 6 Beav. 176. 20 Palmer v. Walesby, L R 3 Ch. 22 it seems, dismiss a part only of his bill. The proper course is for him to amend by omitting it." When there is more than one plaintiff, one of them may by special leave of the court have the bill dismissed with costs so far as concerns himself, provided that no injury will thereby result to any other party. If there are several defendants, a plaintiff may obtain an order dismissing his bill as to some of them, provided that no injury will be thereby done the rest.23 A dismissal at the plaintiff's request before a hearing is usually without prejudice,24 unless evidence has been taken and the cause set down for a hearing, when it should be granted only by a decree dismissing the bill upon the merits.25 The entry of an order of discontinuance upon consent of both parties amounts in effect to a dismissal of the bill. The dismissal of a bill or of part of a bill does not authorize the removal of the paper from the clerk's office unless the order so directs; and such a direction will rarely be given. Otherwise, the paper remains a part of the record, and may be used as evidence of any admission therein contained.28 An order dismissing a bill may be set aside.29 An order denying a motion to dismiss a bill as to a party was held to be appealable.0 § 292. Dismissal of bills for want of prosecution.— A defendant is entitled to an order dismissing the plaintiff's bill: if the plaintiff does not reply to any plea, or set down any plea or demurrer for argument on the rule-day when the same is filed, or on the next succeeding rule-day, unless the time within which to do either of those things has been enlarged by a judge of the court; if the plaintiff does not reply to that defendant's answer on or before the next succeeding rule-day after its App. 732; Wright v. Castle, 3 Meriv. 12. 21 Camden & Amboy R. Co. v. Stewart, 4 C. E. Green (N. J.), 69. But see Lyster v. Stickney, 12 Fed. R. 609. 22 Holkirk v. Holkirk, 4 Madd. 50; Winthrop v. Murray, 7 Hare, 150. 23 Baily v. Lambert, 5 Hare, 178. 24 Daniell's Ch. Pr. (5th Am. ed.) 793. But see Stevens v. The Railroads, 4 Fed. R. 97; and § 300. 25 Rumbly v. Stainton, 24 Ala. 712; Rochester v. Lee, 1 Macn. & G. 467. See Stevens v. The Railroads, 4 Fed. 26 Pictet A. L. Co. v. N. Y. I. M. Co., 12 Fed. R. 816. 27 Lyster v. Stickney, 12 Fed. R. 609, 610. 28 Ibid. 29 Gregory v. Pike (C. C. A.), 67 Fed. R. 837. 30 Brush El. Co. v. California El. L. Co. (C. C. A.), 51 Fed. R. 557; s. C., 52 Fed. R. 945. § 292. Rule 38. filing, provided that no exceptions have been taken to the answer, or that any exceptions filed are still undecided, or that the cause is not set down for a hearing on bill and answer;2 and if no testimony is taken by the plaintiff within three months after the cause is at issue, or within any shorter time that may be assigned by the court; although it might be held that in such a case the defendant must first set the cause down for a hearing. The plaintiff's time for doing any of these things may, however, be enlarged, either before or after it has expired, by the court or by consent at any time; and the taking of any subsequent step by the defendant in the cause, before attempting to take advantage of the default, will usually be deemed a waiver of the same. The refusal of the plaintiff and of the State court to recognize a removal is no defense to such an action to dismiss for want of prosecution in the Federal court, although the court might, in its discretion, consider this, if made in good faith, as a ground for allowing him further time. A failure to take out subpoenas for two years after a bill was filed has been held to justify a dismissal of the bill. § 293. Dismissal for want of jurisdiction.— The Judiciary Act of 1875 provides that "if, in any suit commenced in a Circuit Court or removed from a State court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this Act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or 2 Rule 66; Reynolds v. First Nat. Bank, 112 U. S. 405. Rule 69; Adams v. Howard, 21 Off. Gaz. 264; Mackaye v. Mallory, 80 Fed. R. 256. For the practice in the Southern District of New York, see also infra, § 296; Welsbach L. Co. v. Mahler, 88 Fed. R. 427. For a case where the delay was held excusable, see Beirne v. Wadsworth, 36 Fed. R. ♦ Amendment of 1869 to Rule 67. 5 Rules 38, 66, 69; Ex parte Poultney v. City of La Fayette, 12 Pet. 472. 6 Allen v. Mayor, 7 Fed. R. 483; Jackson v. Ivimey, L. R. 1 Eq. 693. 7 McMullen v. Northern Pac. R. Co., 57 Fed. R. 16. 8 Houston v. City and County of San Francisco, 47 Fed. R. 337; Bancroft v. Sawin, 143 Mass. 144. remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." The court should do this of its own motion, as soon as it discovers its want of jurisdiction or the improper or collusive joinder. The Supreme Court has said that this provision of the Act of 1875 is salutary, and that it is the duty of the Circuit Courts to exercise their power under it in all proper cases. Neither party has the right, however, without pleading it within the time allowed for that purpose, to introduce evidence to contradict averments of the jurisdictional facts; but if, from any source, the court is led to suspect that its jurisdiction has been imposed upon by the collusion of the parties or in any other way, it may of its own motion cause the necessary in quiry to be made, either by having the proper issue joined and tried, or by some other appropriate form of proceeding, and act as justice may require for its own protection against fraud or imposition. In such a case the party that sought the jurisdiction of the Federal court should have an opportunity to be heard on the motion, and to meet it by appropriate evidence." A judge cannot thus dismiss or remand a case upon his personal conviction, although it amounts to a moral certainty; the collusion or lack of jurisdiction must be legally proved, and appear upon the record. If there is no collusion and an orig § 293. 1 Act of March 3, 1875, ch. 137, $5 (18 St. at L. 472). See supra, § 18, and infra, § 393. 2 Williams v. Nottawa, 104 U. S. 209. 3 Williams v. Nottawa, 104 U.S. 209, 212. 4 Hartog v. Memory, 116 U. S. 588; Davies v. Lathrop, 13 Fed. R. 565; Cuthbert v. Galloway, 35 Fed. R. 466; Deputron v. Young, 134 U. S. 241. A refusal by the court upon the trial to allow the defendant to file a plea on the question of the plaintiff's citizenship was held not to be reviewable upon a writ of error. Mexi can C. Ry. Co. v. Pinkney, 149 U. S. 194. It has been said that a defect in the jurisdiction of the Circuit Court for the Southern District of York, because the cause of action arose in the Northern District of that State, may be taken by answer as well as by plea, but unless raised somewhere in the pleadings will be waived. Black v. Thorne, 10 Blatchf. 66. 5 Hartog v. Memory, 116 U. S. 588; Morris v. Gilmer, 129 U. S. 315. 6 Hartog v. Memory, 116 U. S. 588, 590-592; Barry v. Edmunds, 116 U. S. 550. 7 Barry v. Edmunds, 116 U. S. 550, 559; Deputron v. Young, 134 U. S. 241, 252. Where a plaintiff had acquired the causes of action which he sought to enforce, solely for the purpose of collection in the Federal courts under an agreement to pay back a certain proportion of the net proceeds to his assignors, who could not have sued therein, it was held that the suits should be dismissed. 9 inal defect in the jurisdiction has been cured before the objection is raised, it seems that the suit may be retained. If the record does not show affirmatively that the court has jurisdiction, the case may be dismissed at any time by motion before issue joined; after as well as before judgment; and the objection may be taken for the first time in the appellate court.10 An appellate court will rarely direct the dismissal of a case for collusion; but will ordinarily direct a trial of that question by the court below." When, after all the pleadings are filed in a suit which was brought in or removed to a Federal court, on the claim that it is a case arising under the Constitution and laws of the United States, it appears that the averments upon which the jurisdiction is claimed are immaterial, it is the duty of the court to dismiss or remand the cause.12 To justify a dismissal under this statute, the court must be satisfied that the Farmington v. Pillsbury, 114 U. S. 138; Williams v. Nottawa, 104 U. S. 209; Bernards Tp. v. Stebbins, 109 U. S. 341; New Providence v. Halsey, 117 U. S. 336: Little v. Giles, 118 U. S. 596; Norton v. European & N. A. Ry. Co., 32 Fed. R. 865. Where land worth at least $1,800 was conveyed by a citizen of the State to an alien laborer without means, who agreed to pay $600 for the same, paid only $10 in cash, and gave a mortgage for the balance, it was held that the facts did not show a simulated transfer and justify a dismissal of the bill. Woodside v. Ciceroni (C. C. A.), 93 Fed. R. 1. For the reversal of a judgment of dismissal because the evidence did not prove that the value of the matter in dispute was below the jurisdictional amount, see Wetmore v. Rymer, 169 U. S. 115. Cf. Blackburn v. Portland Gold Mine Co., 175 U. S. 571. As to what is not collusion, see Bowdoin College v. Merritt, 63 Fed. R. 213. Before the Act of 1875, it was held that a defendant, between whom and the complainant the requisite difference of citizenship existed, could not raise an objection on account of the citizenship of another defendant. Har rison v. Uramm, 1 Story, 64; Pond v. Bicycle S. Co. v. Gordon, 57 Fed. R. 529; La Vega v. Lapsley, 1 Woods, 428; Municipal Inv. Co. v. Gardiner, 62 Fed. R. 954. But see Fuller v. Metropolitan L. Ins. Co., 31 Fed. R. 696. "Such an objection ought to be raised at the first opportunity, and delay in its presentation should be considered in examining into the grounds upon which it is alleged to rest." Deputron v. Young, 134 U. S. 241, 251. It has been held that upon a motion to dismiss, leave to amend may be given where it does not affirmatively appear that the court has no jurisdiction. Home Ins. Co. of N. Y. v. Nobles, 63 Fed. R. 641. 10 Grace v. Am. C. Ins. Co., 109 U. S. 278; Bors v. Preston, 111 U. S. 252; Mansfield, C. & L. M. Co. v. Swan, 111 U. S. 379. 11 Ashley v. Supervisors of Presque Isle County (C. C. A.), 60 Fed. R. 55. 12 Robinson v. Anderson, 121 U. S. 522; McCain v. Des Moines, 174 U. S. 168; Shreveport v. Cole, 129 U. S. 36; New Orleans v. Benjamin, 153 U. S. 411. See infra, § 393. |