
    Cole et al. v. Fagan.
    [66 South. 400.]
    Judgment. Gonelusiveness. Judgments operative as bar. Dismissal without prejudice.
    
    The effect of a decree hy the chancellor, dismissing a hill without prejudice is that such dismissal shall not operate to bar a new suit which the complainant might thereafter bring upon the same cause of action.
    Appeal from the chancery court of "Wayne county.
    Hon. T. A. Wood, Chancellor.
    Suit by B. W. Fagan -against Buby E. Col'e and others. From a decree for complainant, defendant appeals.
    Appellee, Fagan, filed his bill in chancery alleging that one Ballard and himself purchased from one Weathersbe a certain house and lot; and that Ballard and the appellee were tenants in common until the 25th day of January, 1908, when one of the appellants, W. J. Cole, applied to Ballard to purchase said property; and that said W. J. Cole agreed to buy, and the said Ballard and Fagan agreed to sell said property to Cole and to accept as part of the consideration two thousand dollars, to be paid in two and three years, evidenced by their two notes of one thousand dollars each. Ballard took the note which matured first, and transferred it to a bank as securiy for a debt, and Fagan took the other note. After the first note fell due, Cole refused to pay it; whereupon Ballard, Fagan, and the bank brought suit against Cole and his wife on both notes. Cole defended the suit upon the ground that it had been materially altered without his knowledge and consent after he- had signed the same ; by which material alteration he claimed to be discharged from any liability thereon.
    
      The lower court held that the notes had been materially altered by Ballard, but that said alteraion was made without the consent of Fagan, and rendered a decree in favor of Cole and against Ballard and the bank. The court held that, so far as Fagan was concerned, the suit was prematurely brought, and dismissed the suit as to him without prejudice. Thereafter Fagan instituted the present shit against Cole and his wife on the second note for one thousand dollars, claiming a vendor’s lien on the property which he and Ballard had sold Cole.
    From a decree giving him the relief prayed for, the defendants appeal.
    
      M. L. Heidelberg and Bashin & Wilbourn, for appellants.
    
      S. A. Witherspoon, Jr., for appellee.
   Cook, J.,

delivered the opinion of the court.

As we view this case, the chancery court passed upon the conflicting evidence solving the issue in favor of appellee. Ve cannot say that the finding of fact was clearly wrong, but, on the contrary, it seems to us that there was ample evidence to support the decree of the court.

"We think the dismissal of the former bill without prejudice as to appellee did not bar another suit by him upon the same cause of action. The effect of a decree by the chancellor, dismissing the bill without prejudice is that such dismissal shall not operate to bar a new suit which the complainant might thereafter bring upon the same cause of action. Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609. There is no element of estoppel involved here.

Affirmed.  