Gerber v. Gerber , 155 Ill. 219 ( 1895 )

Mr. Justice Phillips

delivered the opinion of the court:

Where the evidence is conflicting, as here, and the chancellor who heard the case had an opportunity of seeing the witnesses, this court will place much reliance on that fact, and will only in a clear case disturb the finding of the trial court. Rackley v. Rackley, 151 Ill. 332; Coari v. Olsen, 91 id. 273; Johnson v. Johnson, 125 id. 510.

The point most strongly urged is, that as the bill shows a former bill, alleging cruelty, etc., was filed and dismissed by appellee, it is a bar to another suit for the same offense. Where a bill is filed alleging specific facts and praying relief, and an answer and replication thereto and a dismissal thereof, and that dismissal is not shown to be without prejudice, it is a grave question whether such an order is not a bar to a subsequent suit, between the same parties, seeking the same relief on the same facts. (Mey v. Gulliman, 105 Ill. 272.) No former record being in evidence, and nothing to show an answer was filed to the former bill, and replication thereto, or whether the dismissal was without prejudice or not, there is nothing in this record to show a former dismissal as a bar to the bill here. If there was such dismissal, it should have been set up by plea, and have been proven, to constitute a defense.

On the evidence in this record the judgment of the Appellate Court must be affirmed.

Judgment affirmed^