Gulesian v. Richardson

• Decision Date: 03 June 1940
• Citation: 306 Mass. 184,27 N.E.2d 746
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: MOSES H. GULESIAN v. FRANK L. RICHARDSON & others.

306 Mass. 184

27 N.E.2d 746

MOSES H. GULESIAN v. FRANK L. RICHARDSON & others.

Supreme Judicial Court of Massachusetts, Suffolk.

June 3, 1940

February 7, 1940.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Practice, Civil Report. Section 111 of G.L. (Ter. Ed.) c. 231 gave no authority to a judge of the

Superior Court to report his overruling, at the close of the plaintiff's opening to the jury, without prejudice to their being renewed later at the trial, objections by the defendants to the introduction of evidence of certain facts alleged in the opening, the judge stating in the report that he was of opinion that as to some such matters the plaintiff was precluded from introducing evidence and that he sought from this court a determination of which, if any, of the rulings on the defendant's objections should be sustained.

TORT. Writ in the Superior Court dated October 6, 1934. The case came before this court upon a report by Swift, J.

E. F. McClennen (L.

McClennen with him,) for the defendants.

T. B. Shea, (H.

J. Smith & G.

J. Barry with him,) for the plaintiff.

QUA, J. This case is not properly here on report under G.L. (Ter. Ed.) c. 231 Section 111. There has been no verdict, and there has been no finding or agreement as to the facts. The only language of Section 111 under which any contention might be made that the case could be reported is that found in the second sentence under which the trial judge may report if he "is of opinion that an interlocutory . . . order made by him ought to be determined by the full court before any further proceedings in the trial court." There was no interlocutory order within the meaning of the statute.

The action is against the Newton Trust Company and its directors for an alleged "conspiracy" by means of "combined power and influence" to deprive the plaintiff of his real estate, upon which the trust company held a mortgage, through "false rumors and information," "duress," and by other allegedly wrongful means. See Fleming v. Dane, 304 Mass. 46 . The answer set up, among other defences, res judicata arising out of a final decree after rescript upon a counterclaim by the Newton Trust Company in the former suit of Gulesian v. Newton Trust Co. reported in 302 Mass. 369 . At the trial, after the plaintiff had opened to the jury, but before any evidence had been introduced, each defendant moved for the direction of a verdict in his favor on the ground that the evidence offered in the opening, "excluding the matters so opened which had already been adjudged otherwise by the final decree after rescript" in the former suit, would not entitle the plaintiff to a verdict. The defendants supported their motions by a detailed statement of numerous particulars wherein they asserted that the evidence tendered by the plaintiff in his opening was inconsistent with the previous decision. The judge states in his report that he is of the opinion that the plaintiff is precluded by the former decree from offering evidence in support of "some of the matters alleged in the opening" and that he rules that "the plaintiff should not be permitted to offer such evidence." The report continues thus: "and without passing on the merits of the several objections of each of the defendants and their respective motions to direct a verdict for them, I rule that said objections should be overruled at this time without prejudice to their renewal and that their respective motions to direct a verdict for such defendant be denied without prejudice to their renewal, and that in view of this opening for the plaintiff the case should be withdrawn from the jury and reported to the Supreme Judicial Court before any further proceedings in the trial court to determine which, if any, of the rulings on the objections above recited made by the defendants and the rulings denying their respective motions for the direction of a verdict for such defendant on the grounds only, of prior adjudication as above stated, should be sustained, and I hereby report the case for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties." The judge adds that he takes this course at the request of the plaintiff with the consent of the defendants.

He also finds that it would probably take more than a week to present the evidence.

This is not the...