Pelton v. D. & S. Mott , 11 Vt. 148 ( 1839 )

The opinion of the court was delivered by

Bennett, J.

The only question in this case, which can be raised, is whether the conditions, upon which the note was to become operative, had been complied with ; and of that we think there can be no doubt. It is settled law that when a bill in chancery is regularly dismissed upon the merits, and the matters of the bill have been passed upon, it is a bar to a second suit- for the same matters, unless the first bill is dismissed without prejudice. Perine v. Dunn, 4 Johns. Ch. Rep. 140. Prettyman v. Prettyman, 1 Vern. Rep. 310. Milford on Pl. 3 Am. edit. 299. To render this principle applicable, there must be res adjudicata, a passing upon the very matters of the bill; and it is contended in argument that in the present case there was not such a passing upon the matters of the first bill as to constitute a bar to a second bill for the same matter, and we are referred to the case of Rosse et al. v. Rust, 4 Johns. Ch. Rep. 300. But that case is not in point. The bill there was dismissed, because no person appeared on the part of the orator to prosecute; and, though the second bill was for the same matter contained in the first, yet the merits of ..the former were not discussed or passed upon by the court, and theisdecree of dismissal was equivalent to a judgment of nonsuiti at law. Though, in point of fact, the court may not have passed upon the matters of the bill, yet by the consent and agreement of the orator the decree of dismissal was entered upon the merits, and there can be no doubt, that a judgment entered up by the court, upon the agreement of parties, is, to say the least, as conclusive upon them as if judgment were rendered in the ordinary course of proceeding. We are, then, satisfied that the decree in question would be a bar to a second bill for the same cause, and must operate to bar the equity of redemption in the orator to the premises ; and that, consequently, the note now in suit is operative, and the judgment of the court below- must be affirmed.