A final decree in a suit in equity that
"The cause 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,"
and dismissing the bill, is an adjudication on the merits of the
controversy and constitutes a bar to further litigation on the same
subject between the parties, and it is not open to the complainant
to show in a subsequent suit in equity between the same parties, on
the same cause of action, that the decree was made in his absence
and default, and that no proof had been filed in the cause on
The following is the case as stated by the Court:
This is a suit in equity brought in the Circuit Court of the
United States for the District of Indiana by Nelson Lyon against
The Perin and Gaff Manufacturing Company, praying an injunction and
damages for an alleged infringement of reissued letters patent No.
9198, dated May 11, 1880, owned by complainant, for an improvement.
in "metallic stiffeners for boot and shoe heels."
The bill of complainant, after the usual recitals necessary in a
suit of this character, among other things, sets forth that before
the commencement of this action, to-wit, in September, 1881,
complainant having been informed and believing that the defendant
was manufacturing an instrument which infringed said reissued
letters patent, filed his bill in equity against the said defendant
in the United States Circuit Court for the Southern District of
Ohio to restrain said defendant from further infringement; that the
company appeared therein and answered, setting forth, among other
things, the defense that said reissued letters patent was invalid
for want of novelty in the invention, and was not granted in
accordance with law, denying also that the instrument used
infringed the said
Page 125 U. S. 699
reissued letters patent and denying that complainant was
entitled to any of the relief therein prayed, to which answer
complainant filed his replication that the statutory time for
taking testimony having expired, and an extension thereof not
having been granted, and the complainant not having been able to
get the proof of the infringement in time, no evidence of the
facts, matters, or things alleged in his complaint was offered or
taken, and upon the call of the case before the court, counsel for
complainant not appearing, a decree was entered dismissing the
bill, and that none of the issues were tried, and no decision
rendered on the merits thereof, the suit having been dismissed
merely for want of prosecution.
The defendants interposed a plea that the prior adjudication and
decree of the suit mentioned in said plea (which is the same suit
set forth in said bill of complaint) is a bar to the present suit.
The court below found the plea to be good and sufficient. Thereupon
complainant filed his replication. The cause, being at issue, was
referred to a master in chancery to take testimony, and to return
the same into court with his conclusion of law thereon. Testimony
was taken, and the master made and filed his report, in and by
which said master concluded as a matter of law that the decree
mentioned in said plea stands as an absolute adjudication of the
rights of the parties upon the merits, and reported and found that
the averments of the plea were sustained by the evidence.
Exceptions to said master's report having been overruled by the
court and the report confirmed, a decree was entered that the
defendants' plea was well taken in law and sustained by the proofs,
and the bill was dismissed. An appeal from this decree brings the
Page 125 U. S. 700
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
It is well settled that, in order to render a matter res
there must be a concurrence of the four
(1) identity in the thing sued
(2) identity of the cause of action,
identity of persons and parties to the action,,
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
Page 125 U. S. 701
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,
"The United States of America"
"Western Division of the Southern District of Ohio
"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 courtrooms at
the City of Cincinnati, Ohio, in said district, on the 1st Tuesday
of April, being the 4th 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 4th day of May, 1882, among the proceedings
had were the following, to-wit: "
"v. (3180) In Equity"
"The Perin & Gaff Manufacturing Co."
"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. "
Page 125 U. S. 702
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.
7 Wall. 107, 74 U. S.
"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. Winsor,
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 nonsuit 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
Story's Eq.Pl. § 793, and authorities there
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 is