Durant v. Essex Company
74 U.S. 107 (1868)

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U.S. Supreme Court

Durant v. Essex Company, 74 U.S. 7 Wall. 107 107 (1868)

Durant v. Essex Company

74 U.S. (7 Wall.) 107

Syllabus

1. A decree dismissing a bill in an equity suit in the circuit court of the United States, 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 bar to any further litigation of the same subject between the same parties.

2. 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.

3. Where the judges of the Supreme Court of the United States are equally divided in opinion upon the questions of law or fact involved in a case before the court on appeal or writ of error, the judgment of affirmance, which is the judgment rendered in such a case, is as conclusive and binding in every respect upon the parties as if rendered upon the concurrence of all the judges upon every question involved in the case.

The Constitution vests appellate jurisdiction in the Supreme

Page 74 U. S. 108

Court under such regulations as Congress shall make, and Congress, by the Act of March 3, 1803, authorizing appeals, provides that "the said Supreme Court shall be, and hereby is, authorized and required to receive, hear, and determine such appeals."

With these provisions in force, Durant filed a bill in October, 1847, against the Essex Company seeking to hold it liable for certain real estate. The bill was finally "dismissed." An appeal was taken to this Court, where, after hearing the case, the judges were equally divided in opinion, and in conformity with the practice of the Court in such cases, it ordered that the decree of the court "be affirmed with costs."

The complainant, conceiving that as the judgment in this Court was by a bench equally divided, there had been no decision of his case by the court of last resort, filed another bill -- the bill in the court below -- for the same relief in the same matter as he had filed the one before.

The defendant pleaded that the former suit and decree in this Court -- which the plea averred were made after testimony was taken on both sides, and the case heard on its merits and argued by counsel -- were a bar to the present bill. This was determined by the court below to be so, and the mandate of this Court being filed, the complainant moved for leave to discontinue the suit or that the bill be dismissed without prejudice. But the court refused leave and dismissed the bill, no words being put in the decree that showed that the dismissal was other than an absolute one. Appeal here accordingly.

The questions which the appellant now sought to raise were:

1. Whether the decree of dismissal simply was a bar to a new suit?

2. What was the effect of an affirmance by an equally divided court?

Page 74 U. S. 109

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