
    GEORGE M. BOOK v. THE UNITED STATES.
    [No. 15230.
    Decided April 6, 1896.]
    
      On the Proofs.
    
    The case is one of a great number dismissed by tbe Attorney-General atone time for nonprosecution. Tbe attorney of tbe claimant is ignorant of tbe motion and of tbe dismissal and remains in ignorance until after tbe expiration of ibe term. Upon learning the. fact, be moves to reinstate tbe case. Tbe motion is allowed without argument. Tbe defendants now set up tbe judgment of dismissal as one which renders the case res judicata. Tbe case also presents tbe question whether an officer’s pay becomes due only at tbe end of tbe year and when the statute of limitations-will begin to run.
    I.Judgments of nonpros and nonsuit do not constitute an estoppel, and are not final j udgments. The one simply establishes tbe fact that-tbe plaintiff did not prosecute; tbe other that bis proof was not-sufficient.
    II.Tbe court does not lose jurisdiction with tbe expiration of tbe term-unless a final judgment has been rendered; where a case was dismissed for nonpros tbe court may open tbe default after the-expiration of tbe term.
    III.The Revised Statutes (§1556) provide that tbe officers and men of the-Navy “ shall he entitled to receive annual pay at tlie rate herein stated; but tbe officers of tbe Army and Navy have never been paid annually, and in the case of death, resignation, or dismissal pay runs to tbe day when tbe officer leaves the service. Therefore tbe statute of limitations excludes pay anterior to a period of six years prior to tbe bringing of tbe action.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. Tbe claimant, being an officer in tbe United States Navy,. under proper orders from tbe Navy Department, was in command of tbe U. S. S. Montauk from November 1,1879, up to and including January 9,1882. From said November 1,1879, up to May 27,1881, be was a lieutenant of moretban five years’ service in suclx grade.
    II. On May 28,1881, tbe claimant was commissioned a lieutenant-commander in tbe Navy.
    III. Tbe sea pay of a lieutenant of more than live years’ service, as sucb, is $2,600 per annum, and bis shore pay $2,200 per annum. Tbe sea pay of a lieutenant-commander in tbe first four years after date of bis commission is $2,800, and bis sea pay $2,400.
    IY. During tbe periods of tbe claimant’s above-described service on tbe U. S. S. Montauk be was paid only tbe shore pay of an officer of bis respective grades, instead of tbe sea pay therefor. The difference between these two rates of pay is the same in each grade, viz, $400 per annum.
    Y. The U. S. S. Montauk is one of the vessels of tbe United States Navy classed and known as an “ironclad.”
    YI. During tbe period of the claimant’s service tbe Montauk was lying at tbe navy-yard at Washington, D. C. He lived and messed on board of her, and performed the duties of an officer on, and was subject to tbe regulations of, a ship at sea.
    
      Mr. John Paul Jones for the claimant.
    
      Mr. George H. Gorman (with whom was Mr. Assistant Attorney-General Podge) for the defendants.
   Nott, J.,

delivered the opinion of the court:

The court is satisfied that tbe services rendered by tbe claimant in this case were substantially identical with those which bad been rendered by other naval officers in the cases of Symonds (120 U. S. R., p. 46) and Strong (125 id., 656); and consequently that those decisions are conclusive as to tbe claimant’s right to recover upon tbe merits.

An objection is raised by the counsel for the defendants to a consideration of tbe case upon the merits, which objection is based upon the following facts:

Tbe case had been pending for a long time, awaiting tbe decision of the Supreme Court in other cases involving the same question of law. In January, 1895, a motion was made by tbe defendants to place tin's, witb a number of others, on tbe calendar as a neglected case under Buie 74. It was not intended by tbe Assistant Attorney-ixeneral to dismiss cases which were awaiting some authoritative decision in the Supreme Court, but it was not understood by him that this was such a case. If it had been so understood the motion to dismiss would not have been pressed. Not being opposed on the part of the claimant, the motion was allowed by default shortly before the end of the term. It subsequently appeared that the attorney of record was ignorant of the fact that the defendants’ motion had been made and that the case had been dismissed for nonprosecution, and that he remained in such ignorance until after the expiration of the term. Upon learning the fact of dismissal, he promptly moved to set aside and reinstate the case. The motion was granted without argument. The defendants now set up the judgment of dismissal as one which renders the case res judicata.

The leading case in this court on questions of res judicata is that of Spicer (5 C. Cls. R., 34). It is authoritative upon the question presented, and holds that in.this court, as in all others, a judgment does not bar a second suit unless the decision was upon the merits. Judgments of nonpros and nonsuit never constitute an estoppel. The plaintiff pays costs and brings a second action. The one simply establishes the fact that he did not prosecute his suit, and the other that his proof was not sufficient to maintain it. The only penalty incurred in such cases is that he must pay costs incurred before vexing the defendant by a second suit.

The question, however, remains whether the court had jurisdiction to open the default in this case after the expiration of the term. The point has never been absolutely decided, but the opinion has been many times expressed that a court does not lose jurisdiction with the expiration of the term unless the judgment rendered was in the true sense of the term a final judgment. The cases are collected in the brief which the claimant has filed in support of his motion. In this court no costs are recovered, and the Government in such cases gains nothing by retaining the default and compelling a claimant to bring a second action, unless it be the interposition of the statute of limitations, and that is a defense which should not be favored where a party has in fact brought his suit in'due time. The court is therefore of the opinion that this case can be considered upon the merits.

The defendants also raise the objection that a portion of the demand is barred by the statute of limitations.

This suit was brought on the 23d of August, 1886. The defendants insist that the statute bars a recovery prior to August 23,1880. The claimant replies that his pay was not due under the statute until the 1st of January, 1881. The statute relied upon is Revised Statutes, section 1556, which is in these words:

“ The commission ed officers and warrant officers on the active list of the N avy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coal heavers, and employees in the Navy shall be entitled to receive annual pay at the rates herein stated after their respective designations.”

It is undeniable that the statute speaks of the pay as annual and so does the statute from which this provision was taken, Act 15th July, 1870 (16 Stat. L., p. 330). But it is a matter of common knowledge that the officers of the Army and Navy have never been paid annually, and that in the case of death, resignation, or dismissal an officer’s pay runs to the day when he leaves the service. Judgments have been rendered in this court again and again upon that construction of the law, and to hold to the contrary now would be to introduce no end of confusion in the adjustment of officers’ accounts. Such a statute must be interpreted in connection with established usage and the construction of the law by the Executive Departments. The undoubted intent of this statute, and of those which preceded it, was not to disturb the usage and regulations of the Navy Department, but to prescribe a rate of pay.

The judgment of the court is that the claimant recover for a period of one year four months and fifteen days, at $400 per annum, amounting to $549.33.  