Mississippi Central Railroad v. Beatty , 35 Miss. 668 ( 1858 )

Smith, C. J.,

delivered the opinion of the court.

The record, in this case, shows that the jury of inquest, empa-nelled under the provisions of the charter of the Mississippi Central Railroad Company, proceeded to value, and did assess, the damages which would result to the defendant in error, from a location of the road of said company upon his land; and that defendant in error, being dissatisfied with the assessment of the damages, appealed to the Circuit Court of Yalabusha, in which county the lands were situated; that, after the cause was removed into that court, a motion was entered by the defendant in error, to set aside the verdict of the jury; which motion was overruled, and the cause, at the instance of the company, was continued; that at the succeeding term of the court, upon motion of the same party, the suit was dismissed, and judgment entered against the company for the costs. Hence this writ of error was prosecuted.

Generally, a party who institutes a suit or prosecutes an appeal, has a right to dismiss the proceeding. This right is conceded, and results from the fact, that the same end may always be attained by a failure to prosecute. Cases might arise, in which the court before whom they were pending, would have the authority to prevent a dismission, on plaintiff’s application, or to impose terms, if required by the circumstances. In all cases of voluntary dismissions, the uniform rule is, to tax the party dismissing with the costs of the suit. The rule is dictated by common sense and common justice; and in the case before us, there is no conceivable reason why the same principle should not be applied. It is true, the grounds taken in support of the motion, went upon the assumed absolute invalidity of the proceeding from which the appeal was taken. If the grounds taken in support of the motion were tenable, it is manifest that the strongest reasons existed, why the suit should not be dismissed, or rather, why the defendant in error should not desire its dismissal; as the inevitable effect would be, to have the proceeding appealed from, in as full force and effect, as if no appeal had been prosecuted; and if not void, but only voidable, to render them absolutely binding on all parties, and incapable of being questioned in any way whatever.

The judgment dismissing the suit, is not objected to. The exception extends only to the judgment for costs, which will be reversed, and a judgment for costs be ordered to be entered in the court below, against the defendant in error.