Henry W. Long, Ed. L. Wartman, Fred S. Lucius, N. A. Fort and John L. Edwards, as County Commissioners of Marion County, Florida, Appellants, v. Herbert L. Anderson, as Trustee for Elizabeth B. Anderson et al., Appellee, 48 Fla. 279

Shackleford, J. (after stating the facts). — The first error assigned is that “the court erred in allowing the complainant to amend his bill on April 2nd, A. D. 1902, after the said bill had been dismissed, and had stood dismissed since October 16th, 1900.” In considering this assignment the first point presented for determination is whether or not the bill of complaint was ever dismissed as to the Board of County Commissioners.

In other words, does the mere filing of a praecipe for dismissal by the complainant, after the filing of an answer by the defendant, without any action or order thereon by the court, have the effect of dismissing the bill? A casual reading of the third headnote in the case of The State of Florida et al. v. The Florida Central R. R. Co. et al., 15 Fla. 690, would seem to require that this question be answered in the affirmative, but a more careful reading thereof, as well as a reference to the opinion, will lead to a different conclusion.

Said headnote, taken in its entirety, shows that an order was made by the court, regulating the costs, and the opinion (text 697) discloses that said suit was regulated by the code, then in force but long since repealed, and further (text 736) that the bill therein was dismissed by the court, on motion of the defendant, consequently said question was not raised in said case and, therefore, could not have been decided. There is no statute in force or equity rule regulating the dismissal of bills in chancery.

Rule 50 of Rules of Circuit Court in Common Law Actions, has nó applicability, being limited to actions at law. See Newcomb v. White, 5 New Mex. 435, 23 Pac. Rep. 671. As provided by

section 1435 of Rev. Stats, of 1893, in the absence of provision of the law or rules of practice of this State, the rules of practice in the courts of equity of the United States, as prescribed by the Supreme Court thereof, shall be rules of practice in the courts of this State when exercising equity jurisdiction, and when the rules of practice so directed by the Supreme Court do not apply, the practice of the courts shall be regulated by the practice of the High Court of Chancery of England. See Kahn v. Weinlander, 39 Fla. 210, 22 South. Rep. 653. The U. S.

Supreme Court seems never to have made a rule of practice regulating the dismissal of a bill in equity by the complainant. However, the practice in the Federal courts in regard to the dismissal of bills by complainants seems to have been uniform. As was said by Brown, then circuit judge, now one of the justices of the U. S. Supreme Court, in Electrical Accumulator Co. v. Brush Electric Co., 44 Fed.

Rep. 602, text 604, “while there is no doubt of the general proposition that a plaintiff in an equity suit may dismiss his bill at any time before the hearing, it is equally well settled that he can not do so without an order of court, — a practice which implies a certain discretion on the part of the court to refuse such order, if, under the particular fdcts of the case, a dismissal would be prejudicial to the rights of the defendant.” See to the same effect, Badger v. Badger, 1 Cliff. 237, Fed. Cas. No. 717; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. 8,575; Stevens v. The Railroads, 4 Fed.

Rep. 97; Connecticut & P. R. R. Co. v. Hendee, 27 Fed. Rep. 678; Hat-Sweat Manuf'g Co. v. Waring, 46 Fed. Rep. 87; Pullman’s Palace Car Co. v. Central Transp. Co., 49 Fed. Rep. 261; Western Union Tel. Co. v. American Bell Tel. Co., 50 Fed. Rep. 662; Hershberger v. Blewett, 55 Fed. Rep. 170; City of Detroit v. Detroit City Ry. Co., 55 Fed. Rep. 569; Chicago & A. R. Co. v. Union Rolling-Mill Co., 109 U. S. 702, 3 Sup. Ct. Rep. 594; Pullman’s Palace Car Co. v. Central Transp. Co., 171 U. S. 138, 18 Sup. Ct. Rep. 808. The case of American Zylonite Co. v. Celluloid Manuf'g Co., 32 Fed. Rep. 809, is very much in point.

In that case the complainant, without application to the court, entered a rule in the common rule book discontinuing the case on payment of costs. In passing upon this point the court said: “The ex parte entry in the rule book was a nullity. A complainant in an equity action can not in this manner discontinue the suit. An order of the court is necessary.” The practice in the Federal courts was evidently based upon the practice of the High Court of Chancery of England. U. S. Equity Rule No. 90. See Carrington v. Holly, 1 Dickens, 280; Curtis v. Lloyd, 4 Mylne & C. 194; Booth v. Leycester, 1 Keen, 247; Cooper v.

Lewis, 2 Phil. 178; Anonymous, 1 Vesey, Jr., 140; Dixon v. Parks, 1 Vesey, Jr., 402. As was said by Colt, J., in Western Union Tel. Co. v. American Bell Tel. Co., supra, text 665, “while it can not be said that the authorities are entirely harmonious, I think the leading cases in this country and in England support the views herein expressed.” Some of the expressions in different text books, as well as in some of the reports, are too broad and are misleading. In addition to the authorities already cited, the following may prove instructive: 2 Bates’ Fed. Eq. Pr. sections 658, 659; 6 Am. & Eng.

Ency. of Pl. & Pr. 836; 1 Dan. Ch. Pr. 790 and note (sixth Amer. ed.); 1 Beach Mod. Eq. Pr.,

section 460; 1 Foster’s Fed. Pr.,

section 291; 1 Barb. Ch. Pr. 228; Fletcher’s Eq. Pl. & Pr.,

section 562; Blair v. Reading, 99 Ill. 600, text 612; Reilly v. Reilly, 139 Ill. 180, 28 N. E. Rep. 960; Bates v. Skidmore, 170 Ill. 233, 48 N. E. Rep. 962; Bank v. Rose, 1 Rich. Eq. (S. C.) 292; Adger & Co. v. Pringle, 11 S. C. 527, text 547; Cummins v. Bennett, 8 Paige 79; Simpson v. Brewster, 9 Paige 245; Dawson v. Amey, 40 N. J. Eq. 494, 4 Atl. Rep. 442; Saylor’s App. 39 Pa. St. 495; Kempton v. Burgess, 136 Mass. 192; Howard v. Bugbee, 25 Ala. 548; Moore v. Tilman, 106 Tenn. 361, — S. W. Rep. —; Gillespie v. McEwen, 1 Tenn. Cas. 400; Cook v. Walker, 24 Ga. 331; Conner v. Drake, 1 Ohio St. 166.

An examination and comparison of these authorities, as well as of the others cited therein, impel us to the conclusion that the mere filing of a praecipe by complainant for the dismissal of his bill did not operate as a dismissal thereof, no order of court having been made thereon, therefore, the bill was still pending as to the Board of County'Commissioners, on the 2nd day of April, 1902, when the chancellor below made the order allowing the complainant to amend his bill.

No replication having been filed to the answer, Equity Rule 42 gave the complainant the right, upon motion or petition, without notice, to obtain an order from the court for leave to amend his bill. However, in view of the fact that complainant had filed a praecipe for the dismissal of his bill as to said Board of County Commissioners, and there had been great delay upon his

part in moving for the amendment, and also that said amendment materially changed the case made by the original bill, as well as made new parties defendant, we are of the opinion that the better practice would have been to have taxed the complainant with the costs up to date, or else to have denied the petition to amend, and the bill ordered dismissed without prejudice. See Van Zile’s Eq. Pl. & Pr. sec. 245, and authorities cited in note 3. Be that as it may, this assignment suggests no reversible error.

The next assignment of error we shall consider is the fourth, which is as follows: “The court erred in not extending the time to take the testimony on application made May 30th, A. D. 1903.” Undoubtedly there had been great delay in the proceedings in this case upon the part of the complainant as well as of the defendants. However, we see no occasion to set forth the various facts and circumstances connected therewith in detail.

Suffice it to say that, on the 9th day of February, 1903, the court having made an order allowing the defendants twenty days from that date in which to take their testimony, and it having been shown by the affidavit of one of the counsel for defendants, which is not denied, that defendants were prevented from taking any testimony during the time of said extension by reason of the absence of the special master in Tallahassee, the denial of the application of defendants for a further extension virtually amounted to a nullification of the former order and shut the defendants out from taking any testimony.

We are of the opinion that this was error, as the defendants should have had a reasonable time within which to take their testimony, so that the court, at the time of the final hearing, could have had all the facts and circumstances bearing upon the case before it and been in a position to have settled all the equities between the parties, and to have decided the case on the merits. As stated in Ingle v.

Jones, 9 Wall. 486, 5th headnote; “It is for the court below to decide whether further time (for taking testimony in an equity suit) shall be given or refused, and ordinarily the determination of the question would not be deemed a fit subject for review by this tribunal, though cases may occur of so flagrant a character that it would be its duty to interpose.” Also see Magbee v. Kennedy, 26 Fla. 158, 7 South. Rep. 529.

We are of the opinion that this is one of the cases in which it is our duty to interpose, and that the decree should be reversed, with directions to the court below to allow a reasonable time to the defendants within which to take their testimony, and it is so ordered. Having reached this conclusion, it becomes unnecessary for us to consider any of the other errors assigned. However, we deem it proper to say that it might be well for the parties to look to their pleadings, to see if they are in proper shape, and this suggestion applies especially to the pleadings of appellants. Carter, P.

J., and Whitfield, J., concur. Taylor, C. J. and Cockrell, J., concur in the opinion. Hocker, J., being disqualified, took no

part in the consideration of this case.