SMITH AND ANOTHER

v.

MCNEAL AND ANOTHER

Mr. Justice Woods delivered the 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 or arrest.”

The question of law upon'which the parties are at issue, is whether the judgment rendered February 24th, 1877, by which the suit begun December 31st, 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 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. United States, 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 gróund which' did not go to the merits of the action, the judgment rendered will prove no bar to another suit.” See also Greenleaf’s Evidence, sections 529, 530, and cases there cited.

The 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. Defbndants 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.

Brt the suit between these parties, which was begun December 3 'st, 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 31st, 1873, when said first suit was brought, the circuit courts of the Dnited States, under the second section of the' act of Congress of March 2d, 1883, entitled an act further to pi’ovide for the collection of duties on imports, 4 Stat. 632, had jurisdiction of a suit brought to re cover lands purchased at a sale for taxes made under authority of the act of June 7th, 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.

¥e 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. The Mayor and Aldermen of Nashville, 5 Cold. (Tenn.) 639, is much in point. See also Memphis & Charleston Railroad Company v. Pillow, 9 Heiskell (Tenn.), 248; Weathersly v. Weathersly, 31 Miss. 662; Woods v. Houghton, 1 Gray, 580; Coffin v. Cottle, 16 Pick. 383; Givens v. Robbins, 11 Ala. 156; Skillington v. Allison, 2 Hawks. (N.C.) 347; Lonsdale v. Cox, 7 J. J. Marsh (Ky.), 391; Phelps v. Wood, 9 Vt. 399; Spear v. Newell, 13 Vt. 288; Matthews v. Phillips, 2 Salk. 424; Kinsey v. Hayward, 1 Ld. Raym. 432.

The judgment of the oireuit cowrt must le reversed, and the cause remanded to the circuit court for further proceedinas in conformity with this opi/mon.