LYON v. PERIN MANUFACTURING CO.

MR. JUSTICE LAMAR, after stating the case, delivered the opinion of the court.

The only material question for consideration is as to the effect of the decree of the Circuit Court of the United States for the Southern District of Ohio, rendered May 4, 1882, which is correctly found to be still in full force, as a bar to the prosecution of this suit.

It is well settled that, in order to render a matter res adjudicata, there must be a concurrence of the four conditions, viz.: (1) Identity in the thing sued for; (2) Identity of the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality in the persons for or against whom the claim is made. 2 Bouv. 467. All these elements or conditions exist in this case, as shown by the master's report, which was to the effect that the averments of said plea were sustained by the evidence; that there was no controversy as to the identity of the cause of action, or of the identity of the parties in the two suits; that the bill was sworn to by the complainant, and the answer was sworn to by the defendants, and the cause submitted in due course; and that the decree rendered in the suit, pending in the court of Ohio was, as it professed to be, an absolute adjudication of the rights of the parties upon the merits, without any qualifying clause, and was conclusive of the rights attempted to be litigated in this case.

The dispute, however, seems to be as to the nature of the former judgment — that is, whether it is a final judgment or decree. It is contended on the part of appellant that such judgment was merely one of nol. pros. — a decree entered by default — and is, therefore, not a bar to the prosecution of this suit. To sustain this view of the case he has recourse to a statement by the clerk of the Circuit Court of the United States for the Southern District of Ohio, (wherein the decree was rendered,) under his hand and seal, dated nearly two years after said decree was rendered, to the effect that no proof or testimony was filed in said cause in his office either for the complainant or the defendant; that at the time of the granting of said decree, May 4, 1882, the complainant did not appear, nor was he represented by counsel; and that said decree dismissing the complainant's bill was granted on default of the complainant.

The decree itself is in the words and figures following, to wit:

"At a stated term of the Circuit Court of the Western Division of the Southern District of Ohio, in the sixth judicial circuit of the United States of America, begun and had in the court-rooms at the city of Cincinnati, Ohio, in said district, on the first Tuesday of April, being the fourth day of that month, in the year of our Lord one thousand eight hundred and eighty-two, and of the independence of the United States of America the one hundred and sixth.

"Present: The Hon. John Baxter, Circuit Judge, and Hon. Philip B. Swing, District Judge.

"On Thursday, the fourth day of May, 1882, among the proceedings had were the following, to wit:

"This cause coming on for hearing, and, being submitted to the court upon bill, answer, and replication, and having been duly considered, the court finds, adjudges, and decrees that the equities are with the defendant; that the bill of complaint be dismissed, and that defendant recover its costs, to be taxed."

This is the record to which the court must look, and not to the statement of the clerk of the court made two years afterwards. This decree on its face is absolute in its terms, is an adjudication of the merits of the controversy, and, therefore, constitutes a bar to any further litigation of the same subject between the same parties. As was said by this court in Durant v. Essex Company, 7 Wall. 107, 109, "A decree of that kind, unless made because of some defect in the pleadings, or for want of jurisdiction, or because the complainant has an adequate remedy at law, or upon some other ground which does not go to the merits, is a final determination. Where words of qualification, such as `without prejudice,' or other terms indicating a right or privilege to take further legal proceedings on the subject, do not accompany the decree, it is presumed to be rendered on the merits."

To the same effect see Bigelow v. Windsor, 1 Gray, 299, 301, where it is said: "Sometimes, indeed, a party plaintiff in equity, who, because he is not prepared with his proofs, or for other reasons, desires not to go into a hearing, but rather to have his bill dismissed, in the nature of a discontinuance or non-suit in an action at law, may be allowed to do so; but we believe the uniform practice in such case is to enter `dismissed without prejudice.'"

Likewise Cooper Eq. Pl. 270, as follows: "A plea in bar, stating a dismissal of a former bill, is conclusive against a new bill, if the dismissal was upon hearing, and if that dismissal be not in direct terms, `without prejudice.'" See also Story's Eq. Pl. § 793, and authorities there cited.

The authorities to sustain this view of the case might be multiplied, but those cited are sufficient, and demonstrate the uniformity of the rule. It is clear to this court that the decree below dismissing the bill is in harmony with the law, and it is, therefore,

Affirmed