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moved for leave to dismiss the same at his own costs, and on September 2d following, the consent of the Massachusetts Mutual Life Insurance Company and other defendants to the dismissal of the original bill was filed in the cause. On March 29, 1880, John B. Dumont filed his disclaimer to further prosecute said cause, for the reason, as stated by him, that his interest in the same had ceased and terminated by a proceeding had in the circuit court of Will county, Illinois. On the same day the court rendered a final decree in the cause, which was entitled both of the original and cross cause, and which began as follows: "This day came the several parties to the said cause and cross-cause, by their respective solicitors.” The decree then proceeded to overrule the motion of the complainant Dumont for leave to dismiss the bill, and ordered the payment of the sum of $134,733.23 to the rolling-mill company, found due it by the interlocutory decree theretofore entered, with interest, and, in default thereof, that all of the railroad, with its appurtenances, of the Illinois River Railroad Company be sold free and clear of all incumbrances in favor of any of the parties to the suit; the proceeds to be applied,
-First, to the payment of costs; second, to the payment of the sum so found due the rolling-mill company; and the surplus, if any, to be paid to the clerk of the court. The court further decreed that the rolling-mill company have execution against the Alton Railroad Company, the Illinois River Railroad Company, and the construction company, for the sum of $29,796.30, together with interest thereon from the sixteenth day of December, 1878, found due to it by the interlocutory decree theretofore entered.
The Massachusetts Mutual Life Insurance Company, as an intervener in the cause, on June 10, 1880, took and perfected an appeal from the said decree, and on the next day Dumont and the Alton Railroad Company appealed from the same decree; the Illinois River Railroad Company, the construction company, Hancock and Beckwith, having refused to join in such appeal. By the appeal last mentioned the final decree of the circuit court is brought under review.
C. Beckwith, for Chicago & Alton R. Co.
Woods, J. The appellants assign for error: (1) The refusal of the circuit court to dismiss the original bill, and the rendition of the final decree in favor of the rolling-mill company, and the ordering of the sale of the property of the company to satisfy the same. finding that the rolling-mill company had a lien upon the railroad and property of the Illinois River Railroad Company for the amount found to be due it, and that such lien was paramount to the lien of the bonds secured by the trust deed to Straut. (3) The rendition of a personal decree against the Alton Railroad Company for $29,796.30, and the awarding of execution thereon. We shall consider these assignments of error in the order in which they are stated.
The appellants contend that Dumont, the original complainant, had the right at any stage of the case to dismiss his bill, and that its dismissal would carry with it the cross-bill, and that having made the motion to dismiss, which was erroneously overruled, all the subse. quent proceedings and decrees are erroneous. It may be conceded that when an original bill is dismissed before final hearing a cross-bill filed by a defendant falls with it. It may also be conceded that, as a general rule, a complainant in an original bill has the right, at any time upon payment of costs, to dismiss his bill. But this latter rule is subject to a distinct and well-settled exception, namely, that after a decree, whether final or interlocutory, has been made, by which the rights of a party defendant have been adjudicated, or such proceedings have been taken as entitle the defendant to a decree, the complainant will not be allowed to dismiss his bill without the consent of defendant. The rule is stated as follows, in Daniell, Ch. P. (5th Amer. Ed. 793: "After a decree or decretal order the court will not allow a plaintiff to dismiss his own bill unless upon consent, for all parties are interested in a decree, and any party may take such steps as he may be advised to have the effect of it." The same writer (page 794) says that “after a decree has been made, of such a kind that other persons besides the parties on the record are interested in the prosecution of it, neither the plaintiff nor defendant, on the consent of the other, can obtain an order for the dismissal of the bill.” The rule, as we have stated it, is sustained by many adjudicated cases. laid down by the lord chancellor, in Cooper v. Lewis, 2 Phil. Ch. 131, as follows:
“The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant in the same position as he would have stood if the suit had not been instituted; it is not so where there has been a proceeding in the cause which has given the defendant a right against the plaintiff.'
In Bank v. Rose, 1 Rich. Eq. (S. C.) 294, it was said:
“But whenever, in the progress of a cause, the defendant entitles himself to a decree, either against a complainant or a co-defendant, and the dismissal would put him to the expense and trouble of bringing a new suit or making new proofs, such dismissal will not be permitted.
So in the case of Connor v. Drake, 1 Ohio St. 167, the supreme court of Ohio declared:
“The propriety of permitting a complainant to dismiss his bill is a matter within the sound discretion of the court, which discretion is to be exercised with reference to the rights of both parties, as well the defendant as the complainant. After a defendant has been put to trouble in making his defense, if in the progress of the case rights have been manifested that he is entitled to claim and which are valuable to him, it would be unjust to deprive him of them merely because the complainant might come to the conclusion that it would be for his interests to dismiss his bill. Such a mode of proceeding would be trifling with the court as well as with the rights of defendants. We think the court did not err in its ruling in refusing to permit complainant to dismiss his bill."
Chancellor WALWORTH, in the case of Watt v. Crawford, 11 Paige, 472, laid down the rule in these words:
“Before any decree or decretal order has been made in a suit in chancery, by which a defendant therein has acquired rights, the complainant is at libsrty to dismiss his bill upon payment of costs; but after a decree has been made by which a defendant has acquired rights, either as against a complainant or against a co-defendant in the suit, the complainant's bill cannot be dismissed without destroying those rights. The complainant in such a case cannot dismiss without the consent of all parties interested in the decree, nor even with such consent, without a rehearing, or upon a special order to be made by the court."
See, also, Gilbert v. Hawles, 1 Ch. Cas. 40; Bluck v. Colnaghi, 9 Sim. Ch. 411; Lashley v. Hogg, 11 Ves. Jr. 602; Booth v. Leycester, 1 Keene, Ch. 255; Biscoe v. Brett, 2 Ves. & B. 377; Collins v. Greaves, 5 Hare, 596; Gregory v. Spencer, 11 Beav. 143; Carrington v. Holly, 1 Dick. 280; Anon, 11 Ves. Jr. 169; Cozzens v. Sisson, 5 R. I. 490; Updyke v. Doyle, 7 R. I. 461; Atlas Bank v. Nahant Bank, 23 Pick. 491; Bethia v. McKay, Cheves, Eq. (S. C.) 96; Saylor's Appeal, 39 Pa. St. 493; Seymour v. Jerome, Walk. (Mich.) Ch. 356.
The authorities cited sustain the refusal of the circuit court to al. low Dumont to dismiss his bill. The only really contested issue in the case was between Dumont, representing the bondholders, and the rolling-mill company. The answers of all the other defendants sim. ply required proof of the averments of the bill, neither admitting nor denying them. The issue raised by the averments of the original bill and the answer of the rolling-mill company, and by the cross-bill of the rolling-mill company and the answer of Dumont, the complaint in the orignal bill, was whether the rolling-mill company had a lien upon the road and property of the Illinois River Railroad Company, and whether such lien was superior to that of the trust deed executed to Straut, which the original bill was filed to foreclose. The issues thus raised involved the right of all the parties to the suit. This issue was referred to a master to take testimony and report. He filed a report which was entitled both of the original and crosscause. The record shows that, "by agreement of counsel, the report of the master in said bill and cross-bill was referred back to him," with leave to the parties to take further proofs ; that after taking a large mass of additional evidence, covering several hundred printed pages, the master reported that the rolling-mill company had a stat. utory lien upon the property covered by the trust deed executed to Straut, and that the same was consequently the first lien upon the property. Joint exceptions were filed to this report by Dumont, the original complainant, and the Alton Railroad Company and the Illinois River Railroad Company, all of which were entitled both of the orig. inal and cross-cause. After full argument, the court overruled the exceptions and rendered an interlocutory decree in both the original and cross-cause, establishing the lien of the rolling-mill company as claimed in its answer to the original bill and in its cross-bill. After all these proceedings, and when the controversy between the parties was practically ended by the interlocutory decree of the court, the motion to dismiss his original bill was made by Dumont, the complainant therein. The rolling-mill company insisted that if the orig. inal bill, carrying with it the cross-bill, were dismissed, its claim would be barred by the statute of limitations. It would be hard to conceive of a clearer case for the application of the rule laid down by the authorities we have cited. If the court, under these circum. stances, had allowed the original bill to be dismissed without the consent of the rolling-mill company, it would have inflicted a palpable wrong on that company, and trifled with the administration of jus. tice. The fact that the rolling-mill company had been compelled to file a cross-bill in order to secure complete relief, only strengthens the case against the dismissal of the original bill. Several of the authorities cited to show that an original bill cannot be dismissed after decree, apply to cases where a cross-bill has been filed. Bank v. Rose, 1 Rich. Eq., and Watt v. Crawford, ubi supra.
But counsel for appellants insist on the right of Dumont to dismiss his original bill, because a supplemental bill had been filed, to which, as well as to the original bill, the Illinois River Railroad Company had filed a plea denying the jurisdiction of the court; that the truth and sufficiency of this plea were admitted by the complainant, because he failed to reply thereto, or set it down for argument by the next succeeding rule day, or to obtain further time for that purpose from the court; and that therefore, under the thirty-eighth equity ruie, the bill should have been dismissed “as of course" by the court. It is to be observed that the plea referred to was filed by the Illinois River Railroad Company, which is not a party to this appeal, and which never asked the dismissal of the original bill, because its plea had not been put at issue or set down for argument. Under these circumstances it would be a strange application of the thirty-eighth rule to hold that the complainant had the right to dismiss his bill after the cause had been decided against him. It plainly appears from the record that after such plea was filed by the Illinois Railroad Company, no notice was taken of it by any of the parties, the cause was allowed to proceed as if it had never been filed, and was decided upon the issues raised by the answer and cross-bill of the rolling. mill company. The complainant now insists that his bill should have been dismissed, carrying with it the decree of the court in favor of the rolling-mill company, the cross-bill, and the issues raised upon it, and the great mass of testimony in the case, in the taking of which he had participated, because of his own neglect to reply to a plea filed by another party, which itself never insisted upon the dismissal of the bill by reason of that neglect. The only party which could assign for error the refusal of the court to dismiss the bill on account of the default of the original complainant in not replying to or setting down the plea, is the Illinois River Railroad Company, by which the plea was filed. But it has never taken any exception to the refusal of the court to dismiss the bill, and is not a party to this appeal. For the reason stated we think the circuit did right in overruling the application of Dumont for leave to dismiss his bill.
It is next insisted that the court erred in entering a final decree in favor of the rolling-mill company, and ordering a sale of the property of the railroad company to satisfy the same. The ground of this contention is that the final decree was rendered upon the cross-bill only, and not upon the original bill, and that if the cross-bill only were considered the court had no jurisdiction thereof by reason of want of the requisite citizenship of the parties thereto, and that no decree could be rendered upon the cross-bill, except as consequent upon a decree in the original cause. This objection proceeds upon an assumption not sustained by the record. The cause was heard at the same time upon both the original and cross-bills. The issue was whether or not the lien of the rolling-mill company was prior to the bonds secured by the deed of trust. This was raised both by the original and cross-bills. The prayer of the original bill was that an account might be taken of the sums due for principal and interest on the bonds secured by the trust deed to Straut, and of the sums due as liens upon the railroad, and that it might be sold for the payment of the same. The issues raised by the original bill and the answer of the rolling-mill company, and upon the cross-bill of the rollingmill company, were found by the court in favor of the company upon a hearing of both the original and cross-bills. The court decided in favor of the rolling-mill company, granting it the relief prayed in its cross-bill. It is true the complainant, in his original bill, did not ask for a decree upon the final hearing in his favor. But the cause heaving been heard on both the original and cross-bills, he could not prevent the granting of the relief prayed by the cross-bill, either by dismissing his bill or by not asking for a decree. The original bill was not dismissed, but is still pending, and the complainant in that bill may still apply in behalf of the holders of bonds secured by the trust deed to Straut for such part of the proceeds of the sale as the final decree orders to be paid to the clerk of the court. Our conclusion is, therefore, that it was competent for the court to render the final decree made in this case.
The next question presented by the assignments of error is whether the rolling-mill company had a lien upon the railroad and other property of the Illinois River Railroad Company superior to the deed of trust to Straut and the lease to the Alton Railroad Company. The matter of liens upon railroads is regulated by the Revised Statutes of Illinois, c. 82, $ 51, in force when the contract of August 7, 1874, for the delivery of iron rails was made, and on March 1, 1875, when the trust deed to Straut was executed, which declares :
* “That all persons who may have furnished, or who shall hereafter furnish, to any railroad corporation now existing or hereafter to be organized.