Roach v. Roach

• Decision Date: 05 January 1906
• Citation: 76 N.E. 651,190 Mass. 253
• Parties: ROACH v. ROACH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 253

76 N.E. 651

ROACH v. ROACH.

Supreme Judicial Court of Massachusetts, Middlesex.

January 5, 1906

COUNSEL

Chas.

Cowley, for plaintiff.

John J. Pickman, for defendant.

OPINION

HAMMOND, J.

The trial of the case not having been begun, and no decree or order affecting the rights of the parties having been entered, it was the right of the plaintiff to have his petition dismissed without a decision upon the merits. See Hollingsworth & Vose Co. v. Foxborough Water Supply District, 171 Mass. 450, 50 N.E. 1037; Carpenter & Sons Co. v. New York, New Haven & Hartford Railroad, 184 Mass. 98, 68 N.E. 28. This in substance he asked to have done. The entry actually made by the court was, 'Libel dismissed.' The force and effect of this entry is stated by Knowlton, J., in Bradley v. Bradley, 160 Mass. 258, 35 N.E. 482, in the following language: 'The entry, 'Libel dismissed,' without the addition of the words 'without prejudice,' purports to be a final judgment upon the merits. It is a bar to any further proceedings upon the cause of action set out in the libel. In collateral proceedings it is not conclusive, by way of estoppel or as evidence, except upon matters actually tried and determined; but as a final disposition of that for which the suit was brought it is, like a judgment by default, conclusive as well in regard to the matters which might have been pleaded as those which were formally put in issue'--citing Foote v. Gibbs, 1 Gray, 412; Borrowscale v. Tuttle, 5 Allen, 377, 378; Durant v. Essex Co., 8 Allen, 103, 108, 85 Am. Dec. 685; Thurston v. Thurston, 99 Mass. 39; Foye v. Patch, 132 Mass. 105, 111.

It is argued by the libelee that the paper filed by the libelant shows that the entry in this case was in accordance with the consent of the libelant as indicated in the paper, but we do not think that this clearly appears in the record. The fair interpretation of the record is that the court did not intend to make the entry to which the libelant assented, but to make an entry of a different nature and to dismiss the petition generally. This the court could not properly do against the objection of the libelant. The entry should have been: 'Libel dismissed, without prejudice, for want of prosecution.'

Exceptions sustained.