Gregory v. Boston Safe Deposit Trust Company/Opinion of the Court

We are of opinion that the questions attempted to be raised by the present suit should have been presented, and can be effectively determined only in equity cause No. 2,170, and such we understand to have been the opinion of the circuit judge. But the decree below is, in form, one upon the merits, and might perhaps be pleaded in bar of any claim that Gregory or Gregory and Jones might assert in suit No. 2,170 to the funds in question. Without passing upon any of the questions raised by the pleadings in this case, we hold that the decree should have been without prejudice to any right he or they may have to make such claim in that suit, if they be so advised.

It is therefore ordered and adjudged that the decree below be, and the same is hereby, so modified that the dismissal of the bill of complaint is without prejudice to any claim the plaintiffs, or either of them, may rightfully assert in equity suit No. 2,170, in the court below, to the proceeds of the judgment against Swift. The costs of this court are adjudged to the appellees.