
    Robert E. Dixon, administrator &c., plaintiff in error, vs. A. S. Rutherford, receiver, defendant in error.
    The defendant having appeared and answered the bill, and litigated it for five years, an application ,to dismiss, because served by complainant, conies too late.
    It is not in order to move to dismiss a bill for want of prosecution, when no rule msi has been taken to speed the cause, and before all the defendants have answered, and where the defendants have acquiesced in all the delay that has occurred.
    Ill equity, in Muscogee Superior Court, May Term, 1858. Judge E. H. Worried, presiding.
    Dixon, administrator, moved 1o dismiss the bill of Rutherford :
    1st. Because the bill was served by Rutherford as Sheriff, and also, foryvant of prosecution, more than four Terms having elapsed from the filing of said bill.
    The Court refused, and overruled both of said motions, and Dixon excepted.
    For all the facts, see Rutherford vs. Cleghorn et al. seq.
    
    Jones & Jones, for plaintiff in error.
    Wm. Dougherty, for defendant in error.
   By the Court.

Lumpkin, J.

delivering the opinion.

There are two grounds in this writ, one for refusing to dismiss the bill because served by the complainant; and the other for want of prosecution, more than four Terms having elapsed since the filing of the bill.

The first objection comes too late, after five years; the defendant in the meantime, having appeared and answered the bill. The other is premature, all the defendants not having yet fully answered the bill. No rule has ever been taken against the complainant, to speed the cause. If there has been unnecessary delay in this case, it has been acquiesced in by the defendants, as the record demonstrates. The application to dismiss for want of prosecution, comes with rather bad grace from the defendants.

Judgment affirmed.  