(dissenting).
The petitioner for mandamus here is the plaintiff in a civil action now pending in the federal District Court. The defendant’s answer had been served but before the case was set for trial the plaintiff moved for a dismissal without prejudice. The trial court, in a written opinion, decided that the dismissal without prejudice should be granted on the conditions that plaintiff first pay the costs and also certain of defendant’s expenses and attorney’s fees, amounting to some $6,741. It based its authority to impose such conditions on its interpretation of Rule 41(a) (2) of the Rules of Civil Procedure. „
The petitioner for mandamus concedes that the rule vests discretion in the court 'to condition the dismissal to the extent that in the exercise of the discretion the court had the power and acted within its discretion in making the payment of the court costs for which plaintiff was indebted, a condition of dismissal. Before the rule plaintiff could have gone to the clerk and had his dismissal entered, leaving his costs outstanding as a mere debt reducible to judgment by cost bill, and that situation, especially in cases where the plaintiff had recovered below and been reversed on expensive appeal, occasioned the rule forbidding such dismissal without court order and authorizing the court to fix *733“proper” conditions in respect to satisfaction of the costs before relinquishing the case from its jurisdiction. But the petitioner here denies that the rule empowered the court to inquire into expense defendant had incurred in the suit outside of taxable costs, or to condition the dismissal on payment of such expenses by plaintiff.
The trial court’s action was based on its interpretation of the rule that the whole matter of “proper” dismissal conditions is delegated to the discretion of the District Judge, and it agreed with the declaration of the late District Judge Otis, “ * * * no ‘terms and conditions’ are conceivable except such as are calculated to compensate the defendant for the expense to which he has been put.” McCann v. Bentley Stores Corporation, D.C., 34 F.Supp. 234, 235.
The question is of far-reaching importance. The right of plaintiff to dismiss without prejudice before trial is a peculiar one which has persisted a very long time and survived many ' codifications and attacks. It has endured as a refuge for the weak in the hour of their confrontation with the ordeal of trial. The right is in essence of the same nature as the right of trial by jury. Both are practical means, from wisdom and experience, tending to palliate inequality of position between litigants.
Certainly there is nothing in the rule declaring that the traditional right of plaintiffs to dismiss without prejudice before trial shall be abolished. Whether such a long-cherished right of plaintiffs could be substantially impaired by mere rales of court need not be gone into. It is clear the rule-makers recognized the right as continuing and had no thought to abrogate it. As we pointed out in Home Owners’ Loan Corporation v. Huffman, 8 Cir., 134 F.2d 314, the rule is merely declaratory of long-established practice. The facts in that case illustrated the abuse of the right of plaintiffs which the rule is designed to prevent. Plaintiffs who have court costs piled up against them for which they are liable but will not pay, are prevented by the rule from taking their claims out of the court and perhaps into some other forum except under court orders and on proper terms in the court’s discretion respecting satisfaction of their costs. They may be required to pay such costs in whole or part, forthwith or on terms, and the discretion is to get the costs paid but to preserve the plaintiffs’ right consistently with compelling their payment. As the exercise of the right to dismiss always and universally left the plaintiff indebted for the taxable costs, the interpretation we gave the rule in the Huffman case affords means to make plaintiffs do what they were legally obligated to do, and no substantial right was denied them by that interpretation.
I think the contrary interpretation and application in this case is not in accord with the true intendment of the rule. The “proper conditions” of dismissal referred to in the rule do not include every condition that may appeal to a federal judge as an individual. They mean “conditions” compatible with the maintenance of the right of plaintiffs to dismiss at their costs, substantially as it is, and traditionally has been recognized in state statutes and in the practice of the courts, including the federal courts.
I think the declaration that only conditions calculated to compensate the defendant are proper has implicit in it the erroneous assumptions that there is a wrong involved in bringing plaintiff’s suit, and also a consequent damage to be compensated for. The Constitution provides for courts whose criers invite those who have complaints to present them. Courts may not treat the bringing of a civil action in good faith as a wrong, nor its consequences to the defendant as compensable damage.1 The view expressed in the quoted declaration is merely an honored individual’s philosophy. 1 do not think it fits into the law. It controlled the decision in the court below as the court did not find in this plaintiff’s case any individual incidents evoking any exercise of its discretion. Plaintiff’s was an ordinary civil action for recovery of a money judgment and the trial court’s decision means that it will not let plaintiffs in such actions dismiss in that court except on “compensating” defendants.
I dissent from lending our sanction, not only because I think the judges are given no power to fasten such a practice on the federal courts, but if there were power in particular circumstances to exercise discretion, the exercise of it to establish such a general practice should be deemed an *734abuse of discretion.2 The practice marks off the federal courts, unfavorably I think, as courts where the ancient right of dismissal is acknowledged as existent in plaintiffs’ favor, but instead of really affording the right protection, it is sacrificed by making its exercise cost the plaintiff, as in this case, several hundred times more than it would in courts generally, and by most unwisely and injudiciously shifting the burden of the strong onto the shoulders of the weak who have done nothing wrong.
This court’s jurisdiction to issue its mandamus to strike out the conditions which have been imposed, as I think, without any lawful authority, seems clear to me under Ex Parte Skinner & Eddy Corporation, 265 U.S. 86, 44 S.Ct. 446, 68 L.Ed. 912.
Whether it hurts a defendant’s credit more to have a claim against it asserted in pleadings than to have the claim spread by word of mouth and rumor through the marts of trade may be argued.
If there were only abuse of lawful discretion mandamus might not lie to correct it.