303 Mass. 327 (1939), McGrath v. Sullivan

Citation:303 Mass. 327, 21 N.E.2d 533
Party Name:JOHN FRANCIS MCGRATH v. FREDERIC R. SULLIVAN. SAME v. FREDERIC R. SULLIVAN & another.
Case Date:June 07, 1939
Court:Supreme Judicial Court of Massachusetts
 
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303 Mass. 327 (1939)

21 N.E.2d 533

JOHN FRANCIS MCGRATH

v.

FREDERIC R. SULLIVAN. SAME v. FREDERIC R. SULLIVAN & another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 7, 1939

December 7, 1938.

Present: FIELD, C.

J., LUMMUS, QUA, DOLAN, & RONAN, JJ.

Res Judicata. Pleading, Civil, Declaration. Practice, Civil, Abatement, Election. Alienation of Affections. Criminal Conversation. Husband and Wife. Joint Tortfeasors.

A final judgment following the sustaining of a demurrer to a declaration on the ground that it set forth no cause of action barred as res judicata counts of a later action between the same parties setting forth substantially the same allegations, irrespective of whether the sustaining of the demurrer was right or wrong.

A count in an action for criminal conversation with the plaintiff's wife was not barred, on the ground of res judicata, by a judgment for the defendant in an earlier action between the same parties following the sustaining of a demurrer to the declaration on the stated ground that "no action was maintainable for interference . . . with the marriage contract" and probably on the ground that an allegation as to criminal conversation and resulting separation was deemed not to be the gist of the action, although such count contained an allegation that it was "for the same cause of action" as was set forth in two other counts that were so barred.

It was not proper to abate an action at law merely because the plaintiff previously had brought a bill in equity against the same defendant on the same ground, which was still pending; the plaintiff should have been permitted to elect between the two proceedings.

That one of two defendants in an action of tort aided the other by affording him an opportunity to have illicit intercourse with a woman not his wife was ground for action by the husband of the woman against the defendant so aiding although he did not know that the woman was the plaintiff's wife.

TWO ACTIONS OF TORT. Writs in the Superior Court dated March 20, 1937. The actions were reported by Williams, J., and were submitted on briefs in this court.

C. W. Lavers, for the plaintiff. H. F. Wood, for the defendants.

LUMMUS, J. The declaration in the action of tort against Sullivan only, numbered 327782 in the Superior Court,

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contained five counts. The defendant filed what he called a "plea in abatement," which set up as to the first three counts that they were barred by a former judgment in an action between the same parties, numbered 319916. Of course that was really not matter in abatement, but in bar, and under the practice act could not properly be set up by plea, for pleas in bar in...

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