60 Miss. 164 | Miss. | 1882
delivered the opinion of the court.
A matter once adjudicated between the parties by a court of competent jurisdiction is finally and conclusively settled,, and in any subsequent suit for the same cause, the defendant may plead in bar the former judgment or decree. The reason is obvious. If the first judgment is not to be conclusive,, neither would be the second, nor the third, nor any number, and there would be no end to litigation. But the rule is not applicable, save in those cases in which, in the first suit, an issue has been determined in which the merits of the controversy were, or might have been, tried.
In Byrne v. Frere 2 Mol. 157 (12 Exch. Rep. 391), it was said: “There is a difference between amere dismission for want of prosecution, and when the plaintiff, having struggled for more time, the court has, after publication, dismissed the bill. That approaches to adjudication.” To the same effect is Ogsbury v. La Farge, 2 Comst. 113. We cannot follow these decisions. It is not from an approach to adjudication, but from adjudication itself, that the protection arises.
In Dan. Ch. Pr. 609, the author, having stated the rule to be as above, adds that “ under the present practice, if the plaintiff, after the cause is set down to be heard, causes the bill to be dismissed on his own application, or if the cause is called on to heard by the court, and the plaintiff makes default, and by
The American editor of Cooper’s Daniell’s Chancery Practice, seems to adopt this as a statement of a general rule, and adds as citations of authority the American cases of Cummins v. Burnet, 8 Paige, 79 ; Kers v. Jackson, 3 Stockt. 45, and Burkly v. Stainton, 24 Ala. 712. These authorities do not touch the proposition, but refer wholly to a different question. The decree in this case, we think, shows that the cause was not heard on its merits in the first suit, but was dismissed when called for final hearing, on the motion of the defendant, because the plaintiffs failed to appear. The absence of the complainants in no degree affected the right of the defendants to submit the case for final hearing — they had the right to do this, orto have it dismissed for want of prosecution. Having elected the latter course, the result is that the complainants were not thereby barred of another suit.
The decree is affirmed.