Boyajian v. Hart

• Citation: 312 Mass. 264,44 N.E.2d 964
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 28 October 1942
• Parties: SETRAK K. BOYAJIAN v. ELLEN M. HART & another.

312 Mass. 264

44 N.E.2d 964

SETRAK K. BOYAJIAN v. ELLEN M. HART & another.

Supreme Judicial Court of Massachusetts, Worcester. May 7,

October 28, 1942

September 9, 1942.

Present: FIELD, C.

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

Equity Pleading and Practice, Costs, Exceptions. Equity Jurisdiction, One seeking equity must do equity. Error, Whether harmful.

Apart from statutes a court has power both in actions at law and in suits in equity whenever the prevention of vexatious litigation and the interests of justice require, to stay a new proceeding until costs for which the plaintiff has become liable in a former proceeding for substantially the same cause have been paid, and to dismiss the later proceeding for failure to pay them.

No error appeared in an order continuing a suit in equity until payment of costs that had been taxed against the plaintiff in three suits in equity and a writ of entry which the plaintiff previously had brought for substantially the same purpose and by means of which for ten years he had kept alive a controversy respecting a foreclosure by sale of a mortgage on real estate and had maintained a cloud on the title following such sale; and a later order for dismissal of the last suit when such costs were not paid was proper.

The filing of a demurrer and answer to a bill in equity concurrently with the filing of a motion that the suit be stayed until costs against the plaintiff in previous proceedings respecting substantially the same subject matter were paid and that, if they were not paid within a time fixed by the court, the suit be dismissed, did not preclude the defendant from insisting upon his motion, nor was he so precluded by his procuring temporary injunctive relief on a counterclaim set up in the answer.

No prejudicial error was shown on an exception to the dismissal of an appeal from a proper decree in a suit in equity.

BILL IN EQUITY filed in the Superior Court on May 28, 1936. The decree and order to which the plaintiff alleged exceptions were made by Whiting, J., and Burns, J., respectively.

S. K. Boyajian, pro se. A. L. Hyland, for the defendants.

QUA, J. The first of the plaintiff's two bills of exceptions questions the power of the trial court to dismiss this suit for failure of the plaintiff to pay the costs adjudged against him in former proceedings relating to the same subject matter.

The present suit is in equity to set aside for bad faith a foreclosure by the defendant Hart of a mortgage on the plaintiff's real estate. Previous to the bringing of this suit the plaintiff had brought in succession three other suits in equity against the defendant Hart, in one of which the defendant The First National Bank of Boston had been joined. Two of these suits were to restrain the foreclosure of the same mortgage to which the present suit relates and to cancel the mortgage and the third suit was to set aside the foreclosure after it had taken place. The plaintiff also had brought, after the foreclosure, a writ of entry against the defendant The First National Bank of Boston to recover the mortgaged land. Two of the former suits came before this court. Boyajian v. Hart, 284 Mass. 557. Boyajian v. Hart, 292 Mass. 447 . Each of the former proceedings was carried to a final conclusion adverse to the plaintiff and resulted in a decree or judgment for costs against him. By means of this continuous litigation, in which he has been wholly unsuccessful, the plaintiff has managed to keep alive a controversy as to the foreclosure of the mortgage on his property and to maintain a cloud upon the title for nearly ten years.

In the present suit the defendants filed with their demurrer and answer a motion calling the attention of the court to the unpaid costs in the former proceedings and praying that this suit be stayed until those costs were paid and that it be dismissed if they were not paid within a time to be fixed by the court. The court ordered the case continued until the costs were paid and later, upon further motion of the defendants, the court, finding that the costs still remained unpaid, that the former proceedings arose "out of the same transactions," and that the "issues were substantially the same" as those in the present bill, decreed that the plaintiff pay the costs before a fixed date, and that in default of payment the present suit be dismissed.

There was no error. It is a general principle that those who avail themselves of courts of justice for the redress of grievances must proceed in a direct manner by appropriate action adapted to accomplish a legitimate result without unnecessary harm or expense to other litigants. Courts are not established to enable parties to indulge a contentious spirit or to obtain revenge for real or fancied wrongs by wearing out an adversary. An examination of the history of this litigation as disclosed in the pleadings and docket entries in the former cases, to which reference is made in the present record, shows an undue multiplicity of lawsuits pursued to unreasonable lengths. Whatever the plaintiff's motive, it is plain that he could have obtained a decision as to any grievance he could have suffered without so many protracted suits all directed toward substantially the same end. Vexatious litigation may in itself become a ground for equitable relief. Steinberg v. McKay, 295 Mass. 139 , 143. Potter Press v. C. W. Potter, Inc. 303 Mass. 485 , 494. When, therefore, the plaintiff started this his fifth lawsuit to avoid a foreclosure...