2 Del. Ch. 27 | New York Court of Chancery | 1837
The preliminary question presented in this suit, if in favor of the defendant, must necessarily decide the ease. It relates to the effect and operation of the former decree, which is relied on by the defendant in his answer as conclusive. It is admitted that the bill filed in this cause is between the same parties and for the same matter in regard to which the former decree was made. The complainant insists that the decree heretofore entered and signed should be considered as made without prejudice, and ought not to be allowed such an effect as to preclude him from proceeding by an original bill. In support of this opinion it is insisted that matter apparent on the face of the decree shows it was not a decision upon the merits; and, therefore, it ought not to be a bar. If this be the rule of practice in a court of equity, then in all cases in which the complainant fails,
This rule of practice, as I have stated it, has been too long established to allow either its propriety or utility to be now questioned. It affords ample means of relief in all cases in which parties injured by decrees are attentive to their rights and avail themselves of the appropriate remedy.
If, then, the decree pronounced heretofore and relied on by defendant in his answer is final and has been entered and signed, it is conclusive unless embraced within the exceptions to the general rule. As I have already observed, the complainant insists that it comes within the reason of the exception, and is the same as a decree dismissing a bill without prejudice. We will therefore advert to the decree, and consider the reason why a party whose bill is dismissed, without prej udice, is allowed to file a new bill. It does appear to me that there is a very material and essential difference between a decree which declares that its effect shall not prejudice and one which, omitting such declaration as to its effect and operation, expresses in terms the reason why it is pronounced. If this statement of the distinction does not render the - difference apparent I cannot then discover any sound reason why in all cases, where the complainant fails for want of proof he should not be allowed to file a new bill. The statement of the fact in the decree as a reason for dismissing the bill cannot alter the right, if for failure on such ground the complain
The reason of the rule allowing a party whose bill is dismissed without prejudice to file anew bill is manifest. By the terms of the decree the right is preserved. The words “without prejudice” have reference to the effect and operation of the decree itself. Decrees in this form are not allowed unless in cases where, from peculiar circumstances, they become essential to afford the party the opportunity of having his cause fairly heard. They are not countenanced where the party has either had a hearing, or by his own negligence fails to present his cause at the hearing fully before the courts, either in the statement or proof of his claim. In all cases, so far as I have examined the decisions, if the complainant, either at law or in equity, submits his cause to the decision of a competent tribunal, and has once obtained that decision, he cannot again present the same case to the same tribunal, unless by application for a new trial at law. or, in equity, by petition for rehearing or bill of review. The only exception at law is in the action of ejectment; and this -is founded on a fiction.
In the decree now relied on as a bar to the relief sought by the complainant, it is declared that the bill was dismissed because the complainant failed to prove a material fact, viz: the divorce. This phraseology shows that the cause was heard, and that the complainant failed because he did not establish the case stated in his bill. The decree, therefore, is a decree on hearing of the cause; and I cannot discover upon what principle it can be regarded in any other light than as a final decree. It has been certainly so considered by the complainant, and has been