Roach v. Roach , 190 Mass. 253 ( 1906 )

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 libellant to have his libel dismissed without a decision upon the merits. See Hollingsworth & Vose Co. v. Foxborough Water Supply District, 171 Mass. 450; Carpenter Sons Co. v. New York, New Haven, & Hartford Railroad, 184 Mass. 98. This in substance he asked to have done. The entry actually made by the judge was “Libel dismissed.” The force and effect of this entry is stated by Knowlton, J. in Bradley v. Bradley, 160 Mass. 258, 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; Thurston v. Thurston, 99 Mass. 39; Foye v. Patch, 132 Mass. 105, 111.

It is argued by the libellee that the paper filed by the libellant shows that the entry in this case was in accordance with the consent of the libellant 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 judge did not intend to make the entry to which the libellant assented, but to make an entry of a different nature and to dismiss the petition generally. This the judge could not properly do against the objection of the libellant. The entry should have been “Libel dismissed without prejudice, for want of prosecution.”

Exceptions sustained.