185 F. 1002 | E.D. Pa. | 1911
This is precisely the same controversy between the same parties that was litigated in a previous action. Worrell v. Whitney et al. (D. C.) 179 Fed. 1014. The decree then entered is now attacked collaterally in a second suit, and the question of its effect is raised by the plea. In Wilson v. Smith, 126 Fed. 916, 61 C. C. A. 446, the Court of Appeals for the Third Circuit states the rule that governs‘the dispute:
“A decree dimissing a bill in equity, which is absolute in its terms, unless made upon some ground which does not go to the merits, is a final determination of the controversy, and constitutes a liar .to any further litigation of the same subject between the same parties. Durant v. Essex Co., 7 Wall. 107, 19 L. Ed. 154; Case v. Beauregard, 101 U. S. 688, 25 L. Ed. 1004. And in the absence of words of qualification accompanying the decree, such as ‘without prejudice,’ and other terms indicating a right or privilege to talie further proceedings on the subject, the decree of dismissal is presumed to be rendered on the merits.”
A reference to the opinion and decree in the former action will show that this presumption is in accordance with the fact, and that the case has once been actually heard and determined on the merits. In that proceeding the plaintiff was bound to show that the bankrupt firm was insolvent when the alleged preferential transfer was made. Upon that issue he offered some testimony, but did not offer enough. He
The plea in bar 'is therefore good, and upon that plea the defendants are entitled to a decree dismissing the bill.
