Lakin v. Lawrence , 195 Mass. 27 ( 1907 )

Sheldon, J.

The motion to revoke the final decree was overruled rightly. The principle is established “ that after the entry of a final decree in equity, as after the entry of a final judgment in a suit at law, the case is finally disposed of by the court, subject to such rights of appeal, if any, as the statute gives, and the court has no further power to deal with the case except upon a bill of review.” White v. Gove, 183 Mass. 333, 340. Thompson v. Goulding, 5 Allen, 81. Clapp v. Thaxter, 7 Gray, 384. The decree dismissing the bill was a final decree, and not a mere order for a decree, as in Merrill v. Beckwith, 168 Mass. 72. And see Gilpatrick v. Glidden, 82 Maine, 201; Pitman v. Thornton, 65 Maine, 95. We have not considered the affidavit of one of the plaintiffs’ attorneys inserted in their brief; for the appeal of course brings before us only the record in the case, and no such affidavit appears to have been filed in the Superior Court.

But questions of discretion, as well as of right, are brought before us upon an appeal. Hollingsworth & Vose Co. v. Fox-borough Water Supply District, 171 Mass. 450. We are of opinion that under the circumstances the dismissal of this bill should have been without prejudice. What took place was equivalent to a nonsuit in an action at law. It is not necessary to determine whether the decree as entered would prevent the bringing of another bill. See Foote v. Gibbs, 1 Gray, 412; Butchers' Slaughtering Melting Association v. Boston, 137 Mass. 186. However this may be, the decree ought to show that it is not to be a bar to further litigation, and this is best done by the statement that it is made without prejudice. Kempton v. Burgess, 136 Mass. 192. Roach v. Roach, 190 Mass. 253. The decree of “ bill dismissed ” should be modified accordingly.

Bill to be dismissed without prejudice.