The decree in a case is the dominant act, and cannot be given a
greater effect than it purports to have and than would be warranted
by the opinion that the court finally reached.
The fact that a court, in dismissing a libel without prejudice
to a new suit, expressed a decision on the merits, which it
afterwards, on motion, excluded, does not make the decree as
finally entered a decision on the merits.
While a matter is still in its breast, the court may change its
opinion and do so by changing the decree.
Writ of error to review 206 N.Y. 173 dismissed.
The facts are stated in the opinion.
Memorandum opinion by direction of the court. By MR. JUSTICE
HOLMES:
Page 227 U. S. 638
This is an action brought by the Buchholz-Hill Transportation
Company, defendant in error, against Baxter for failing to use due
diligence in locating and marking a sunken coal barge with a buoy,
as he had agreed to, by reason of which failure a tug ran into the
wreck and was sunk. It is alleged that the owners of the tug
libeled the barge in the admiralty, that the Buchholz-Hill Company
answered and filed a petition to bring in Baxter under the 59th
Admiralty Rule, that the district court entered a decree against
the barge, but gave costs to Baxter without prejudice to a new
action against him, and that the circuit court of appeals affirmed
the decree. The defendant set up the decree dismissing the libel as
against him, alleging that the decision was upon the merits, and
that the decree, insofar as it purported to be without prejudice,
was not warranted by law. The appellate division and the court of
appeals both held the plea bad. 142 App.Div. 25, 206 N.Y. 173.
The defendant relies upon the fact that the circuit court of
appeals in its opinion expressed a decision upon the merits.
The Macy, 170 F. 930. But, upon motion, it so far changed
its view as to exclude such a decision, and to leave it open to the
company to bring a new action. The matter was still in the breast
of the court; it was free to change its opinion if it saw fit, and
it was free to do so by changing the decree without delivering a
new opinion to explain what the decree made manifest. If it
thought, rightly or wrongly, that the collateral question of the
present defendant's liability could not be tried in that case, it
properly embodied its decision in the decree. The decree is the
dominant act, and cannot be given a greater effect than it purports
to have and than would be warranted by the opinion that the court
finally reached.
Writ of error dismissed.