Huskey v. United States

TAYLOR, District Judge.

The motion to dismiss this action requires a construction of rule 41 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

There is a motion to dismiss the suit upon the alleged ground that it is the third suit on the same claim, two former suits having been voluntarily dismissed. It is alleged in the motion, therefore, that the second voluntary nonsuit operated as a trial on the merits.

The facts conceded and apparent from the record are that the first suit on this claim was filed by Walter A. Huskey as administrator of the estate of John Wesley…