I do not agree with the views set forth in the majority opinion. A well-established, logical, and generally accepted rule of equity procedure is set at naught by this decision, and it is difficult to discern from the opinion the reasons therefor.
I am cognizant of the fact that a bill of review will only lie where there is error apparent on the record, or if, after final decree, new evidence is discovered. Weldon v. Callison,119 W. Va. 306, 193 S.E. 441. But I do not regard the original and amended bills of complaint in the instant case as bills of review or bills in the nature of bills of review. An analysis of the allegations contained in the said bills clearly shows that this is an independent suit in equity having alternative objects: (1) to set aside the decree on grounds of fraud; or (2) to assert the rights of plaintiffs in an independent suit.
The primary, if not the only, question presented by this appeal relates to the dismissal of the suit of Chounis v.Laing, reported in 125 W. Va. 275, 23 S.E.2d 628. In an ordinary suit where the rights of the plaintiff of record only are at stake, plaintiff, if he so desires, may dismiss his suit at any time. However, in some instances the dismissal is not permitted as a matter of right if prejudice to defendant would result from such dismissal. A suit brought for the benefit of a class may be dismissed by plaintiff before decree, but after a decree is made affecting the rights of other parties, the plaintiff cannot as a matter of right dismiss the suit. C. A.R. R. Co. v. Union Rolling Mills Co., 109 U.S. 702, 713,27 L. Ed. 1081. See 1 Daniell's Chancery Pleading Practice, 6th ed. 795; Hirshfeld v. Fitzgerald *Page 389 (N.Y.), 51 N.E. 997, and annotation in 8 A.L.R. 950, and 91 A.L.R. 587.
The foregoing principle is implicitly and properly applied in the cases of Bilmeyer v. Sherman, 23 W. Va. 656; Laidley v.Kline's Admr., 23 W. Va. 565; Lewis v. Laidley, 39 W. Va. 422,19 S.E. 378; and Honesdale Co. v. Montgomery, 56 W. Va. 397,49 S.E. 434. Even though the cases just cited were creditors' suits, I see no substantial ground for distinguishing them from the principle invoked by plaintiffs in the instant case. The general rule, which has been approved by this Court, precluded the dismissal of the suit of Chounis v.Laing, supra.
Plaintiff of record in the Chounis case did not dismiss that suit. He had no authority to do so. In view of what this Court stated in its opinion in the Chounis case, which was to the effect that other stockholders, whose rights were not barred, might intervene in that suit. Plaintiffs in the instant suit have sought to intervene, but cannot because of the dismissal of the suit. Certainly, if plaintiff of record in the Chounis case was precluded from dismissing that suit in bar of the rights of other stockholders, defendants could not do so after Chounis' claim was satisfied, and he consented to the dismissal of the suit as to him only.
It is my view that the Circuit Court of Kanawha County, in pronouncing the decree of dismissal within less than three months after the decision of this Court was announced, failed to consider the possibility of intervention by other stockholders, and such failure prejudiced the rights of other stockholders for whose benefit the class suit ofChounis v. Laing, supra, was brought.
Defendants argue that the original and amended bills of complaint are bad on demurrer, for the reason that those pleadings disclose that plaintiffs were guilty of laches. Laches is the failure or omission of a person to assert a right for an unreasonable and unexplained time in circumstances which are prejudicial to the adverse party. In the majority of litigated cases where the defense *Page 390 of laches is interposed, the questions arising can be better determined by a hearing on the merits, and the trial court may refuse to dismiss or review on demurrer. Curl v. Vance, 116 W. Va. 419,181 S.E. 412.
It may be that a hearing on the merits of this case would have disclosed that plaintiffs herein have not been diligent in asserting their rights, and that the delay resulted in prejudice to defendants, but I do not believe that such situation is clearly and fully disclosed by the pleadings so as to be a proper basis of demurrer to the original and amended bills of complaint on the ground of laches.
For the foregoing reasons I would reverse the decree of the Circuit Court of Kanawha County.