Page:Federal Reporter, 1st Series, Volume 4.djvu/113

STEVENS V. THE BAILBOADS. 99 �ii is therefore proper io allow a decree authorlzing another suit to be brought. �The learned counsel for plaintiffs produces much authority to estabJish hia right to bring another, suit if this be volunta- rily diBmissed, and asks the court now to determine that ques- tion by inserting a judgaient on it in his favor in the decree of dismissal. The proper occasion to adjudicate that ques- tion will be when the second suit shall be brought, and the decree on the first shall be pleaded in bar to its further pros- ecution. It is manifestly improper to rule upon it now. If the plaintiffs' assumption of the law be correct, they do not need to add to the decree that it shall bewithout prejudice to their right to bring another suit; and, uniess there be soma special circumstance requiring the court to depart from the usual form of decree in such cases, it would not be just to the defendants to prejudge their right to plead a voluntary dis- missal in bar of another suit. In Vaneman v. Fairbrother, 1 Blackf. (Ind.) 541, the court refused the plaintiffs motion to dismiss "without prejudice," and inserted in the decree that it was dismissed "with prejudice." The plaintiff appealed because the order was not granted in the form he asked. The supreme court very sensibly said: "Had the order of dismis- sion contained the words ' without prejudice,' as desired by complainant, it would have afforded no more security to hia rights than it would without them ; and the insertion of the words ' with prejudice, ' as insisted on by the court, does not render the order of dismission peremptory, like a decree of dismission on the merita. Either set of words is unmean- ing in an order of dismissal, on the motion of complainant, without a final hearing, as it would have been had the cause been dismissed, on motion of the defendants, for want of pros- ecution." �After a hearing, either upon demurrer or final hearing, it may be and often is very important to determine whether a dismissal shall be without prejudice; and where the plaintiff bas made some slip and finds himself caught in the predica- ment of having his cause heard imperfeotly by reason of some defect of pleading or parties, or misconception of the ����