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the rolling-mill company then and thereby complied with its contract, and was entitled to the consideration therein named. It is also alleged that the rolling mill company had received in part payment of said consideration the sum of $95,000, and no more, and that the purchasing companies had wholly neglected and refused to pay the rolling-mill company any further sums of money on the contract, and had neglected and refused to deliver to it any of the notes or securities for deferred payments on the rails, etc., as provided in said contract, although requested to do so; and that thereby the whole amount of the purchase money for the rails, etc., had become due and payable. It further alleged that on May 10, 1875, the rolling-mill company, within the time prescribed by law, filed its bill in the circuit court of Will county, Illinois, for the purpose of enforcing its lien, under the statutes of Illinois, upon the railroad and its appurtenances, and that the bill was still pending and undetermined. The answer still further alleged that the rolling-mill company not only had a statutory lien upon all the materials furnished under said contract, but by the contract it had an express contract lien upon the same, and that by virtue of the contract and the facts set forth it had a lien upon the Illinois River Railroad and its appurtenances paramount to the lien of the bondholders under said deed of trust and all other liens upon the road.

On the same day on which its answer was filed the rolling-mill company obtained leave to file, and did file, a cross-bill in the cause, setting up the same matters stated in its answer, and praying that upon the final hearing a decree might be entered requiring payment of the amount due to it within a certain time to be fixed by the decree, and that in default thereof the railroad of the Illinois River Railroad Company and all its appurtenances might be sold, and out of the proceeds its claim might be paid in preference to the bondholders or any other persons. The answers to the cross-bill of the rolling-mill company denied that said company had any lien for the materials furnished by it under said contract, either by virtue of the contract or the statutes of Illinois. Afterwards, on May 31, 1876, the master to whom the cause had been referred filed his report upon the claims of the rolling-mill company, with the testimony in support thereof, by which he found due to the complainant in a cross-bill from the Illinois River Railroad Company and the construction company, for iron rails, etc., furnished under said contract, with interest, etc., the sum of $186,783.49, and for which he reported the rolling-mill company had a lien binding on all the defendants. On June 27, 1876, the report of the master was referred back to him by the following order, which was entitled both of the original and the cross-cause:

"By agreement of counsel the report of the master in said bill and crossbill is referred back to Henry W. Bishop, the master in chancery of this court, with leave for the complainant in said bill and the defendants to take further proofs within eight (8) days from this date, and for the Union Rolling-mill

to take further proofs, if desired, within twelve (12) days from this date, said master to report at the expiration of said twelve days."

On July 1, 1876, Dumont, the complainant in the original bill, filed his supplemental bill, in which he averred that, since the filing of the original bill, coupons, attached to the bonds mentioned, falling due on March 1, 1876, had become due, and remained unpaid, although presented for payment; that he had paid out certain sums for right of way, for laying down side tracks, and switches, and for taxes, and prayed that an account might be taken of the sums due on said coupons so fallen due, and of the sums paid out by complainant as aforesaid, and that the latter might be declared a lien on the mortgaged premises. On August 3, 1876, the Illinois River Railroad Company filed its plea to the original and supplemental bills, in which it averred that at the date of the mortgage set forth in the original and supplemental bills, and at the beginning of this suit, the said George Straut, the trustee named in the deed of mortgage, was, and ever since had been and still continued to be, a citizen of the state of Illinois; that he was such citizen on September 13, 1875, when he was applied to to foreclose the deed of trust, and on September 13, 1875, when he resigned said trust; that from and after March 1, 1875, until the commencement of this suit, all the defendants to the original and supplemental bills had been citizens of the state of Illinois, and had continuously remained such citizens until the filing of the plea. Wherefore, the said company averred that Dumont, as assignee of said chose in action, namely, said deed of trust, had no standing to prosecute the said suit, and set up the facts aforesaid in bar of the jurisdiction of the court.

No other plea, answer, or demurrer was ever filed to the supplemental bill by any of the defendants in the cause, nor was said plea to the original and supplemental bill ever replied to or set down for argument. On June 26, 1877, one year after the report first filed by him had been recommitted, the master, after re-examining the former testimony, and taking additional testimony, covering in all several hundred printed pages, and hearing the arguments of counsel, filed his second report, affirming his former findings, and sustaining the allegations of the cross-bill. On July 16, 1877, exceptions to this report were filed by Dumont, the complainant in the original bill, the main ground of the exceptions being that the master had erred in reporting that the rolling-mill company was entitled to a first lien on the mortgaged premises for the amount found to be due it. October 15, 1877, the following order was entered:

"Now come the parties by their solicitors, and thereupon the original, supplemental, and cross-bills were submitted to the court on printed arguments to be furnished by Messrs. Beckwith and Smith by October 26th inst., by Messrs. Cooper and Packard and Henry Crawford by October 30th inst., by George Campbell by November 20th next, and by Messrs. Beck with and Smith in reply by November 30th next."

On the twenty-fifth day of May, 1878, the Massachusetts Mutual Life Insurance Company, on leave of court, filed an intervening petition in the cause, stating, among other things, that it was the holder of some of the bonds secured by the trust deed to George Straut, and that the complainant, John B. Dumont, was threatening to foreclose the trust deed under the power of sale contained therein, and prayed for an injunction to prevent such sale, and, in accordance with this prayer, an order was entered in the cause on the twenty-fifth of May, 1878, restraining Dumont from selling the property included in the trust deed until the further order of the court. Afterwards, on January 4, 1878, by agreement of the parties by their solicitors, an order was entered setting aside the order of October 15, 1877, submitting the exceptions to the master's report upon printed briefs. June 5, 1878, the exceptions came up for hearing before the court. The hearing continued until June 11, 1878, when the exceptions were taken under advisement. On December 16, 1878, the court entered an interlocutory decree upon the report of the master and the exceptions thereto. This decree was entitled thus:

"John B. Dumont vs. Chicago and Illinois River Railroad Company et al. (In Chancery. Original Bill.)

and

“Union Rolling-Mill Company vs. John B. Dumont et al. (Cross-bill.)"

By this interlocutory decree the court found due the rolling-mill company $134,733.23 on account of rails and materials used in the construction of the railroad and not paid for, and that this sum constituted a lien upon the railroad of the Illinois River Railroad Company, and "upon all its property, real, personal, and mixed." The court further found that the rolling-mill company had delivered to said Illinois River Railroad Company and the construction company iron rails, steel rails, etc., mentioned in the contracts with said rolling-mill company to a large amount, which had been sold by the Illinois River Railroad Company and the construction company to the Alton Railroad Company, with full knowledge of the lien of said rolling-mill company thereon; that the Alton Railroad Company had never specially paid for such material, but had converted the same to its own use, and that such rails and other materials were then of the value of $24,464.92. This sum the court found the rolling-mill company was entitled to have and recover from the Illinois River Railroad Company, the construction company, and the Alton Railroad Company, together with interest thereon, amounting at the date of the decree to the sum of $29,796.30; and the court reserved for further consideration all questions relative to the enforcement of the lien declared for the sum of $134,733.23, and relative to the sum of $29,796.30, found due from the Alton Railroad Company, the construction company, and the Illinois River Railroad Company.

Afterwards, on April 15, 1879, the complainant in the original bill

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.

S. W. Packard, for Mass. Mut. Life Ins. Co.

Lyman Trumbull and H. A. Gardner, for Union Rolling-Mill 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. (2) The 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 subsequent 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. It was 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."

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