Smith v. McNeal/Opinion of the Court

The question presented by the record is the sufficiency of the plaintiffs' replication to the defendants' plea of the seven-years' statute of limitation. The limitation relied on by defendants is that prescribed by article 2765 of the Code of Tennessee, which is as follows:

'No person, or any one claiming under him, shall have any     action, either at law or in equity, for any lands, etc., but      within seven years after the right of action has accrued.'

The plaintiffs in error contend that their present action is saved from the bar of this statute by the provision of article 2755 of the Code, which is as follows:

'If the action is commenced within the time limited, but the     judgment or decree is rendered against the plaintiff upon any      ground not concluding his right of action, or when the      judgment or decree is rendered in favor of the plaintiff and      is arrested or reversed on appeal, the plaintiff or his      representatives or privies may commence a new action within      one year after the reversal in arrest.'

The question of law upon which the parties are at issue is whether the judgment rendered February 24, 1877, by which the suit begun December 31, 1873, was dismissed, the dismissal being on the ground that the court had no jurisdiction of the cause of action set out in the declaration, falls within the saving of this section as being rendered on a ground not concluding the plaintiffs' right of action. It is well settled that the judgment of a court dismissing a suit for want of jurisdiction does not conclude the plaintiffs' right of action.

In Walden v. Bodley, 14 Pet. 156, it was said by this court:

'A decree dismissing a bill generally may be set up in bar of     a second bill having the same object in view, but when the      bill has been dismissed on the ground that the court had no      jurisdiction, which shows that the merits were not heard, the      dismissal is not a bar to the second suit.'

So in the case of Hughes v. U.S. 4 Wall. 232, this court declared:

'In order that a judgment may constitute a bar to another     suit it must be rendered in a proceeding between the same      parties or their privies, and the point of controversy must      be the same in both cases, and must be determined on its      merits. If the first suit was dismissed for defect of     pleadings or parties, or a misconception of the form of      proceeding, or the want of jurisdiction, or was disposed of      on any ground which did not go to the merits of the action,      the judgment rendered will prove no bar to another suit.' See      also, Greenl. Ev. §§ 529, 530, and cases there cited.

These cases would seem to settle the question against defendants in error, for they decide that the dismissal of a suit for want of jurisdiction is upon a ground not concluding the right of action. Defendants in error, however, contend that the bringing of a suit in a court having no jurisdiction thereof was gross negligence, and that the current of authority is against extending the terms of the statute to let in one guilty of it. Cases might be supposed, perhaps, where the want of jurisdiction in the court was so clear that the bringing of a suit therein would show such gross negligence and indifference as to cut the party off from the benefit of the saving statute, as if an action of ejectment should be brought in a court of admiralty, or a bill in equity should be filed before a justice of the peace. But the suit between these parties, which was begun December 31, 1873, is far from being such a case. There is nothing in the record to show that it was dismissed for any inherent want of jurisdiction in the court in which it was brought. We think that on December 31, 1873, when said first suit was brought, the circuit courts of the United States, under the second section of the act of congress of March 3, 1833, entitled 'An act further to provide for the collection of duties on imports,' (4 St. 632,) had jurisdiction of a suit brought to recover lands purchased at a sale for taxes made under authority of the act of June 7, 1862, for the collection of taxes in insurrectionary districts, where the title so derived was disputed by defendants. The defect was in the declaration, which, although it averred that plaintiffs claimed title under the revenue laws of the United States, did not aver that their title in that respect was disputed by defendants. Had such an averment been made, the jurisdiction of the court would have appeared on the face of the declaration. Ex parte Smith, 94 U.S. 455. The first suit was therefore dismissed, because the declaration did not state the jurisdictional facts upon which the right of the court to entertain the suit was brought. In other words, the case was dismissed for a defect in pleading. In the present suit the defect of the declaration in the first suit is supplied. We are of opinion, therefore, that the plaintiffs in error are entitled to the benefit of article 2755 of the Code of Tennessee, for their judgment in the first suit was not upon any ground concluding their right of action, nor have they been guilty of such negligence or carelessness in the bringing of their first suit as should exclude them from the benefit of the said article. In support of the proposition that plaintiffs in error have not been guilty of such negligence as should exclude them from the benefit of article 2755, the case of Cole v. Mayor, etc., 5 Cold. (Tenn.) 639, is much in point. See, also, Memphis & C. R. Co. v. Pillow, 9 Heisk. (Tenn.) 248; Weathersly v. Weathersly, 31 Miss. 662; Woods v. Houghton, 1 Gray, 580; Coffin v. Cuttle, 16 Pick. 386; Givens v. Robbins, 11 Ala. 156, Skillington v. Allison, 2 Hawks, (N. C.) 347; Lansdale v. Cox, 7 J. J. Marsh. 394; Phelps v. Wood, 9 Vt. 404; Spear v. Newell, 13 Vt. 288; Mathews v. Philips, 2 Salk. 425; Kinsey v. Hayward, 1 Ld. Raym. 434.

The judgment of the circuit court must be reversed, and the cause remanded to the circuit court for further proceedings in conformity with this opinion.