Baird v. Bardwell

Citations

• 60 Miss. 164

Syllabus

<p>1. Res Adjddicata. Chancery practice. Dismissal ■ of hill upon motion of defendant Effect.</p> <p>The complainant in a suit in chancery, after filing his bill, became lax in the prosecution of his suit. The defendant, having answered and taken some testimony, had the complainant cited to appear and prosecute the suit. The complainant failed to appear on the day appointed for his appearance in the citation. Thereupon the defendant had the case set down for final hearing, and a decree therein was rendered in the following language: “ This cause coming on this day to be finally heard, and the said complainant in person or by counsel failing tó appear, after being duly called, on motion of counsel for defendant, it is ordered, adjudged, and deceed that the said bill be and the same is hereby dismissed.” Subsequently another bill was filed, with the same parties, upon the same cause of complaint, and with the same prayer. To this bill the defendant pleaded the decree in the former suit as a bar. Eeld, that the decree in the former suit shows that the case was not heard on its merits, but was dismissed for want of prosecution; and such decree is not a bar to this suit.</p> <p>2. Same. Chancery practice. Default of complainant. Rights of defendant.</p> <p>If the defendant in the former suit above referred to had desired to obtain a decree, which he might plead in bar of a subsequent suit, he should have submitted the case upon its merits, as he had his election to do that or to move for a dismissal for want of prosecution.</p>