77 Tenn. 524 | Tenn. | 1882
delivered the opinion of the court.
On May 15, 1854, Robert Lusk recovered a judgment in the circuit court of Davidson county, against Thomas Parkes for $1720. The entry shows that the judgment was by default upon an acknowledgment of service of the summons, and that the acknowledgment was proved by R. C. Foster, Esq. On the 1st of July, 1854, ‘¿ fitri fa-cias issued on this judgment to Davidson county, and was returned “no property found.” On September 12, 1854, an alias fi. fa. issued to Hamilton county, and was levied by the sheriff on several thousand acres of land as the property of Parkes. On January 10, 1855, the sheriff, by virtue of the levy, sold the land to the judgment creditor, Robert Lusk, for less than the amount of the judgment, and made him deeds accordingly, Avhich were duly registered. In the month of October, 1855, Thomas Parkes died intestate in Hardin county, leaving three children as his only heirs, W. J. Parkes, then about seventeen years of age, Thomas Parkes, about fifteen years of age, and the complainant, James A. Parkes, then twelve or eighteen months old. The deceased left also a widow. Administration was taken out on his estate shortly after his death.
On April 25, 1876, W. J. Parkes, Thomas Parkes and James A. Parkes, filed their bill in the chancery court of Hamilton county, as the children and heirs of Thomas Parkes, the intestate, against Wm. Clift, of Hamilton county, Matilda Lusk, as executrix of the last will of Robert Lusk, deceased, and E. G. Pearl,
On March 29, 1880, James A. Parkes filed the present bill against the same parties and for the ,same purpose. He states the fact of the filing of the previous bill by himself and brothers, and what was done with it as above. He sets out the facts of the case as therein recited, and adds other facts tending to show that the debt on which the judgment was recovered
The bill as drafted leaves it uncertain what park of the facts detailed in it were not contained in the former bill of the 25th of April, 1876. There is a general statement that the facts have all come to the knowledge of complainant and his brothers since Jan
A judgment or decree to be a bar must be on the merits: Hurst v. Means, 2 Sneed, 546; Mabry v. Churchwell, 1 Lea, 416. And a decree dismissing a bill upon demurrer may be upon the merits, in which case it is as conclusive as if the facts set forth in the bill were admitted by the parties, or established by evidence: Murdoch v. Qashill, 8 Baxt., 22; Grotenkemper v. Carver, 4 Lea, 375. The decree relied on as an estoppel in the case before us has all the elements of an estoppel, being a general dismissal of a bill between, as we have seen, the same parties, touchiug the same subject matter, and for the same purpose. And the question may, of course, be raised by a demurrer if the facts sufficiently appear on the face of the bill.
These principles are conceded by the eminent counsel who argued this case on behalf of the complainant. He rested the right of his client to relief upon the provisions of the Code, sec! 2755: •‘If the action is commenced within the time limited [by the statue of limitations], but the judgment or decree is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested,
The argument is based upon the fact, alleged in the bill, that the opinion of the court delivered in the former suit showed that the bill was 'dismissed upon the ground of lapse of time, “ there being,” says the opinion, “ no excuse whatever given for failure to sue in a reasonable time — no allegation of infancy, or fraudulent concealment of, or even ignorance of their rights on the part of the complainants.” The opinion adds: “ We adjudge nothing as to the legal rights of complainants, only that from lapse of time a court of equity will not entertain a bill on its allegations.” Perhaps it would be a sufficient answer to the argument to say that the dismissal, as the bill shows, was general,- without reservation, and that, even if the opinion might authorize the court to modify the decree
The section of the Code relied on, it will be noticed, only saves the bar of the statutes of limitation in the particular case provided for. The dismissal in question, according to the bill, was upon the ground of lapse of time, that is the laches of the complainants in not having brought their suit in a reasonable time after the accrual of their right of action. Lache-s is an equitable defense independent of the statute Of limitations: Smith v. Clay, Amb., 645. But the section of the Code relied on does not, in terms, apply to a case of laches within the rule of a court of equity. It was only intended to save the bar of the statute of limitations in the cases specified. It would not otherwise change the effect of a former judgment or decree as res adjudicata.
What, then, is the effect of the former decree, conceding it to be, as stated in the bill, a decree, upon demurrer, dismissing the bill “alone upon the ground of lapse of time”? Would such a decree be upon the merits, and, therefore, necessarily concluding rights? In order that a judgment or decree should be on the merits, it is not necessary that the litigation should be determined “on the merits,” in the moral or abstract sense of these' words. It is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases. The decision may be clearly wrong, or may be against the losing party because he offered in evidenoe a valid*
The decree will be reversed, the demurrer sustained, and the bill dismissed with costs.