On the trial of a cause in the Circuit Court of the District of
Maine, upon certain questions which arose in the progress of the
trial, the judges of the court were divided in opinion, and the
questions were, at the request of the plaintiff, certified to the
Supreme Court, to January term, 1835. In December, 1836, the
plaintiff filed in the office of the clerk of the Circuit Court of
Maine, a notice to the defendant that he had discontinued the suit
in the circuit court, and that as soon as the Supreme Court should
meet at Washington, the same disposition would be made of it there,
and that the costs would be paid when made up. A copy of this
notice was given to the counsel of the defendants. The plaintiffs
counsel asked the court for leave to discontinue the cause, and the
discontinuance was allowed.
Quaere whether the party on whose motion questions are
certified to the Supreme Court, under the act of Congress, has a
right generally to withdraw the record or discontinue the case in
the Supreme Court, the original cause being detained in the circuit
court for ulterior proceedings.
An action of trespass was instituted in 1835 in the Circuit
Court of the District of Maine, and the question between the
plaintiff and the defendant was as to the title in certain lots of
ground, described in the declaration, in the County of Penobscot in
the State of Maine.
The case came on to be tried before the circuit court at October
term 1835, and the judges of the court being divided in opinion on
certain questions arising in the trial of the cause, the same were,
at the request of the plaintiff, by the order of the court,
certified to the Supreme Court of the United States. The case was
docketed at January term 1836.
On 15 December 1836, the plaintiff filed a notice in the circuit
court, that the case then under a certificate of division to the
Supreme Court of the United States was discontinued in the circuit
court, and that the same would be discontinued in the Supreme Court
at Washington as soon as that Court should meet. The notice also
stated the readiness of the plaintiff to pay the legal costs of the
defendants when the same should be made up. Notice of this paper
was given to the defendants.
Smith and Butler, of counsel for the plaintiff, moved the court
to discontinue the case.
Page 36 U. S. 59
MR. JUSTICE STORY delivered the opinion of the Court.
This is a case certified from the Circuit Court for the District
of Maine, upon a division of opinion of the judges of that court,
upon certain questions which arose in the progress of the trial of
the cause. These questions were certified to this Court at the last
term upon the motion of the plaintiff. On 15 December last, the
plaintiff filed in the clerk's office of the circuit court (it
being vacation) a written declaration, as follows:
"I hereby notify you that the action of trespass which is now
pending in said court to await the decision of certain questions
carried up to the Supreme Court is discontinued by me, and that the
same disposition will be made of the case in the Supreme Court at
Washington as soon as it meets at Washington. You will therefore
please to file this in the case and notify the counsel for the
defendants of the same and that their legal costs in the said
circuit court may be immediately made up, and the same will be
paid."
Due notice was accordingly given to the counsel of the
defendants, and the counsel for the plaintiff have, accordingly, at
the present term, made a motion in this Court under these
circumstances to discontinue the cause here and to withdraw the
record. The motion is resisted on the other side upon the ground
that the defendants have an interest in having these certified
questions decided by this Court of which they cannot be deprived
without their own consent by the dismissal of the cause. The point
is confessedly new, and we have therefore thought it right, after
the argument, to give it full consideration with reference to the
future practice of the Court.
Page 36 U. S. 60
The Act of 1802, ch. 31, ยง 6, under which this case has been
certified, provides
"That whatever any question shall occur before a circuit court
upon which the judges shall be opposed, the point upon which the
disagreement shall happen shall, during the same term, upon the
request of either party, or their counsel, be stated under the
direction of the judges and certified, under the seal of the court,
to the Supreme Court at its next session to be held thereafter, and
shall by the said Court be finally decided. And the decision of the
Supreme Court and its order in the premises shall be remitted to
the circuit court and be there entered on record, and shall have
effect according to the nature of the said judgment and order,
provided however that nothing herein contained shall prevent the
cause from proceeding if, in the opinion of the Court, further
proceedings can be had without prejudice to the merits."
In construing a statute providing for such a novel mode of
obtaining the decision of an appellate court upon the matters of
controversy between the parties, it is not surprising that there
should be some difficulty in ascertaining the precise rights of the
parties; whether the party upon whose motion the questions are
brought here is to be treated like a plaintiff in error, as
entitled to dismiss his own certified cause at his pleasure, or
whether the other party is entitled to retain the cause for his own
benefit and to insist upon a final adjudication of the questions
here. It is clear that the statute does not, upon the certificate
of division, remove the original cause into this Court; on the
contrary, it is left in the possession of the court below for the
purpose of further proceedings if they can be had without prejudice
to the merits, so that in effect the certified questions only, and
not the original cause, are removed to this Court. In the next
place, looking to the intent and objects of the provision, which
are to enable the court below to proceed to a final adjudication of
the merits of the cause, it seems equally clear that if the
original cause is entirely withdrawn from the cognizance of the
circuit court by discontinuance or otherwise, there is no ground
upon which this Court should be required to proceed to decide the
certified questions, since they are thus become mere abstract
questions. They are but incidents to the original cause, and ought
to follow the fate of their principal. We have no doubt, then, that
upon the true construction of the statute, if a discontinuance had
been actually entered in the Circuit Court of Maine in term, the
record here ought not further to be acted upon by us, but a
withdrawal or dismissal of the certified
Page 36 U. S. 61
questions ought to be allowed. If it were necessary to
accomplish this object in the most formal way, we should order the
case to stand continued until the next term of this Court, so that
the plaintiff might in the intermediate time make an application to
the circuit court in term to enter a discontinuance thereof in that
court.
The only point of difficulty is whether the filing of the above
paper in the circuit court, in vacation, constitutes
per
se a discontinuance of the original cause, without any action
of the circuit court thereon, upon which this Court ought now to
act. According to the practice of some of the courts in the Union,
it is understood to be the right of the plaintiff to enter a
discontinuance of the cause at any time, either in term or in
vacation, upon the payment of costs, before a verdict is given,
without a formal assent of, or application to, the court, and that
thereupon the cause is deemed in contemplation of law to be
discontinued. In Massachusetts and Maine a different practice is
understood to prevail, and the discontinuance can only be in term,
and is generally upon application to the court. In many cases,
however, in these states, it is a matter of right. In
Haskell
v. Whitney, 12 Mass. 49-50, this doctrine was expressly
recognized. The court on that occasion said,
"The plaintiff or demandant may, in various modes, become
nonsuit or discontinue his cause, at his pleasure; at the beginning
of every term at which he is demandable, he may neglect or refuse
to appear; if the pleadings are not closed, he may refuse to reply
or to join an issue tendered, or after issue joined he may decline
to open his cause to the jury; the court also may, upon sufficient
cause shown, allow him to discontinue, even when it cannot be
claimed as a right, or after the cause is opened and submitted to
the jury."
Before trial, then, the plaintiff may, in many cases, as a
matter of right, discontinue his cause, according to the practice
of the state courts, at any time when he is demandable in court.
After a trial or verdict, he can do so only by leave of the court,
which it may grant or refuse, in its discretion. But under ordinary
circumstances, before verdict it is almost a matter of course to
grant it upon payment of costs when it is not strictly demandable
of right.
Under the circumstances of the present case, we have no doubt
that the plaintiff is estopped hereafter to withdraw his assent to
the discontinuance of his suit in the circuit court, and that that
court possesses full authority to enter such discontinuance at its
next term upon the mere footing of the paper filed in the clerk's
office, without
Page 36 U. S. 62
any further act of the plaintiff. We think too that it would be
the duty of that court to allow the entry of such discontinuance
upon the application of the plaintiff, as he certainly has a right,
in that or some other form, to decline to proceed further in the
suit or to prosecute it further, subject to the payment of costs to
the defendants. In substance, then, we think the original cause in
the circuit court ought now to be treated by us as virtually at an
end for all the purposes of requiring our decision upon the
certified questions, and that the motion to withdraw the record and
discontinue the cause ought to be granted.
In making this decision, we wish to be understood as not meaning
to intimate that the party upon whose motion any questions are
certified to this Court under the statute has a right generally to
withdraw the record or discontinue the case here while the original
cause is retained in the circuit court for ulterior proceedings.
That is a point of a very different nature from that now before us,
and may require very different principles to govern it. It will be
sufficient to decide it when it shall arise directly in
judgment.
On consideration of the motion made in this cause on a prior day
of the present term of this Court, to-wit, Thursday, the 12th
inst., by Mr. Smith, of counsel for the plaintiff, to dismiss this
cause, and of the arguments thereupon had, as well in support of as
against the motion, it is now here considered by the Court that
said motion be and the same is hereby granted. Whereupon it is now
here ordered and adjudged by this Court that this cause be and the
same is hereby dismissed.