Equity Pleading and Practice, Decree, Appeal. After a final decree in a suit in equity has been entered the court which made the decree has no power to grant a motion to revoke it.
On an appeal from a decree in equity this court cannot consider an affidavit of one of the counsel in the case, inserted in his brief, which does not appear to have been filed in the court in which the decree was made.
On an appeal from a decree in equity questions of discretion which appear upon the record as well as matters of right are brought before this court.
The Superior Court made and entered this decree: "This case came on to be heard upon bill and answer. The plaintiffs not appearing it is hereby ordered, adjudged and decreed that the plaintiffs' bill be dismissed." Three days later the plaintiffs filed a motion to revoke the decree, which was denied, the court having no power to grant it. On appeal to this court, it was held, that the decree, having been made under circumstances which would have called for a nonsuit in an action at law, should have included a statement that it was made without prejudice, and it was ordered that the decree of "bill dismissed" should be modified accordingly.
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. Foxborough 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.