The plaintiff in error filed his bill of complaint in the St. Louis Circuit Court, in chancery, against the defendants in error, on the 30th of October, 1845. On the 5th of December in the same year, being the November term of said court, the defendants filed their demurrer to the complainant’s bill — at the April term of said court, 1846, the court sustained the demurrer : and on motion leave was given to the complainant to amend his bill. At the November term, 1846, on the 23rd day of the month, the complainant having failed to amend his bill, the court dismissed the bill at the costs of the complainant. In October, 1849, the complainant sued out his writ of error, and brings the case before this court.
From an examination of the record and proceedings in this case it will not be necessary for this court to take any notice of the bill of complaint and the matters therein set forth ; nor of the action of the court below in sustaining the defendant’s demurrer to the bill. The court below on sustaining the demurrer of the bill, granted the complainant, on motion, leave to amend his bill. ¥e find from 20th May up to 23rd November, that the complainant took no steps in his suit, made no amendment to his bill; and that on the last mentioned day the court dismissed the bill, at complainant’s costs. No bill of exceptions was filed in this case. We cannot see upon what terms the leave to amend may have been given as to time; nor but that the complainant may have been guilty of gross laches in the prosecution- of his suit. We must presume in the absence of everything to the contrary, that the court below decided correctly upon the facts as they appeared before it. Before that court was the complainant, by his counsel; and likewise the defendants. It is fair to presume that everything was done properly in the premises — and nothing to the contrary appearing by any bill of exceptions, we feel unwilling to disturb its judgment. However, we would have been better satisfied, if the court below had dismissed the bill without prejudice. This court will therefore so far only reverse the judgment of the court below, as to direct the dismissal of this bill to be without prejudice, but at complainant’s costs.