
    CHARLES L. GUSS AND E. W. MOWREY, TRADING AS GUSS & MOWREY, v. THE UNITED STATES
    [No. D-328.
    Decided February 16, 1925]
    
      On Defendemos Motion to Dismiss
    
    
      Res adjudieata ; dismissal for nonproaecuHon. — The' dismissal oí a petition in this court for want of prosecution is in the nature of a nonsuit and not a judgment on the merits, and a motion by the defendant to dismiss- an identical suit between the same parties on the ground of res adjudieata will not be sustained.
    
      
      The Reporter's statement of the case:
    
      Mr. Heber H. Rice, with whom was Mr. Assistant Attorney General WUlimn J. Donovan, for the motion to dismiss.
    
      Mr. M. Walton.Hendry, opposed.
   MEMORANDUM BT TI-IE COTTRT

This is a motion to dismiss this suit upon the grounds of res adjudicata, it appearing that an identical suit between the same parties was dismissed on December 4, 1922, for want of prosecution, and that the court on October 8, 1923, overruled a motion of the plaintiff to reinstate the case upon the docket. Thereafter, on May 12, 1924, the plaintiff filed the pending suit, which states the same cause of action which is stated in the suit dismissed for want of prosecution.

The dismissal of a petition in this court for want of prosecution is in the nature of a nonsuit. Such a dismissal is not a judgment on the merits of the case. No right has been adjudicated or released in the first suit. The dismissal of the suit was occasioned by the failure of the plaintiff to prosecute his suit. The dismissal was hot on any ground which went to the merits of the action and is not therefore a bar to another suit.

The dismissal of the first suit did not determine the rights of the parties and is therefore not conclusive as an estoppel. Gardner v. Michigan, Central R. R. Co., 150 U. S. 349; Manhattan Life Ins. Co. v. Broughton, 109 U. S. 121; Oscanyan v. Arms Co., 103 U. S. 261; Jacobs v. Marks, 182 U. S. 583; Haldeman v. United States, 91 U. S. 584; Hughes v. United States, 4 Wall. 232; Homer v. Brown, 16 How. 355; Spicer v. United States, 5 C. Cls. 34; Book v. United States, 31 C. Cls. 272.

The motion of the defendant is overruled.  