Hart v. Philips — 9 Paige Ch. 293

Majority

p. 293

Hart vs. Philips and others.

Headnote

Where a defendant pleads a former decree, or another suit pending for the same cause, or other matter of record in the samo court, and obtains the report of a master that the plea is true, as provided by the 48th rule of the court of chancery, he cannot obtain an order, upon motion, to dismiss the complainant’s bill; but he must bring the cause on to be heard, upon the plea and the master’s report, to enable the court to decide upon the validity of the plea.

September 6.

This was an application to dismiss the complainant’s bill for want of prosecution. The defendant Philips, in whose behalf the application was made, had pleaded the pendency of a former suit, and had obtained the master’s report thereon ; but neither party had set down the cause for hearing upon the plea and master’s report.

J. Rhoades, for the defendant Philips.

Eben. Clark, for the complainant.

The defendant is not entitled to dismiss the complainant’s bill in such a case as this for want of prosecution. Where the defendant pleads a former decree, or another suit pending for the same cause, or other matter of record in the same court, the reference to the master to enquire and report as to the truth of the plea is a mere preliminary proceeding. And when the report is in favor of the truth of the plea, no further proceedings can be had thereon by either party until the plea has been argued and disposed of in the usual form. If the defendant wishes to expedite the proceedings in the suit, or to have the bill dismissed as improperly hied, he must bring the case on to be heard upon the plea and the master’s report thereon, under the provisions of the 48th rule, to obtain the decision of the court upon the validity of his plea.

Motion denied.