The ground of demurrer sustained by the District Court was because the matters alleged in the answer “show that the judgment plead as a bar to this action was an entry of dismissal because no person appeared on the part of plaintiff, and that the merits of the cause were never discussed; that the court never made any finding or expressed any opinion upon them, and that the legal effect of said judgment is only equivalent to
The answer in the action in the Federal Court was such as to require the plaintiff to prove the allegations of his bill, before he could obtain the relief asked. There was also a demurrer to the bill which the record fails to disclose had been in any manner disposed of at the time the cause was submitted to the court. Previous to said submission the plaintiff filed a replication. In determining the question presented we have to say:
I. The record entry in the Federal Court, or decree, whichever it may be designated, is not such as is ordinarily made upon a submission on demurrer. The demurrer is not mentioned, but the cause was submitted on the “pleadings and proofs.” It is unusual to submit proofs with a demurrer and we cannot, in the absence of a more explicit record, presume there was any submission whatever of the demurrer. On the other hand the decree warrants the presumption that the cause was submitted on bill, answer, replication and testimony, and that the demurrer was waived. Such a practice most certainly obtains in the courts of this State, and in the absence of any showing to the contrary we must presume the same to- exist in the Circuit Court of the United States.
The answer in the Circuit Court of the United States did not interpose any technical objections whatever to the plaintiff’s recovery, but presented, as has been said, the plain and simple issue as to the truth of the allegations in the bill, and the case being submitted to the court on such an issue, with the proofs, the court dismissed the bill and rendered judgment against the plaintiff for costs. This, as we understand, is the usual entry under the chancery practice which obtains in the courts of the United States, when the bill is dismissed on the merits for the want of equity. • It is something more than a nonsuit in an action at law, and under the practice in chancery amounts to a bar to any future'proceeding for the same cause. This must be true, because the court in order to arrive at the result has not only examined the pleadings, and thus determined the issues, but has examined the proofs, and there
A libel for a divorce is like a bill in equity, and unless it be. dismissed without prejudice it is a bar to a new libel. Thurston v. Thurston, 99 Mass., 31.
In Foote v. Gibbs, 1 Gray, 112, the entry of record was: “ And now in this term before the court have come the parties by their said attorneys, and this action is dismissed on motion of defendants. Defendant asks costs, which is" granted.” This entry -was held to be a bar to a subsequent action, and Shaw, Oh. J., said: “But the authorities both in England and in this country are decisive that a general entry of ‘bill dismissed’ with no words of qualification such as ‘dismissed without prejudiced’ or ‘without prejudice to an action at. law,’ or the like, is conclusively presumed to be upon the merits, and is a final determination of the controversy.” See, also, Borrowscale v. Tuttle, 5 Allen, 377, Curts v. Trustees of Beardstown, 6 J. J. Marshall, 536. Rosse v. Rust, 4 Johns. Ch’y, 300, which apparently holds a contrary doctrine, must
In Foster v. Busteed, 100 Mass., 409, it was found from the record that the former actions were prematurely commenced, and that for this reason the dismissal thereof did not constitute a bar. These are the only cases to which we have been cited which have any material bearing on the question presented.
Reverseu.