Corey v. Tuttle

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: 249 Mass. 135,144 N.E. 230
• Parties: COREY v. TUTTLE et al.
• Decision Date: 23 May 1924

249 Mass. 135
144 N.E. 230

COREY
v.
TUTTLE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1924.

Appeal from Superior Court, Middlesex County; W. C. Wait, Judge.

Suit in equity by William H. Corey against George H. Tuttle, administrator, and others. Decree for defendants, and plaintiff appeals. Reversed, and decree entered.

See, also, 245 Mass. 196, 140 N. E. 249.

[249 Mass. 136]

[144 N.E. 231]

P. H. Kelley, of Boston, for appellant.

S. D. Elmore, of Boston, for appellees.

RUGG, C. J.

This is a suit in equity in the superior court for Middlesex county. The bill alleges that the defendants brought a suit in equity against the plaintiff, wherein a decree was entered ordering the plaintiff to convey to the defendants certain parcels of land on the ground that he had procured the same by fraud from one Ann Tuttle, and also establishing indebtedness due from him to Ann Tuttle for $2,613.31, for which execution issued and levy was made thereon on property of the plaintiff; that said decree was entered pursuant to the findings of a master, who also found as disclosed by his report that there was due to the plaintiff from said Ann Tuttle $4,000 for services rendered to her for the period between January 1, 1906, and April 5, 1921, by the plaintiff independently of the debt of $2,613.31, and that through ignorance the plaintiff failed to file a cross-bill or to avail himself in any way of the benefit of said finding; [249 Mass. 137]and that, the master's report having been confirmed and all exceptions thereto overruled, the plaintiff is entitled to the benefit of the finding of such indebtedness due to him from Ann Tuttle. There are prayers for several forms of relief. The bill was filed on September 7, 1923. The defendants filed on September 18, 1923, a ‘motion to require plaintiff to elect.’ This motion set out that ‘there is now pending in the superior court for Middlesex county an action at law against the defendant George H. Tuttle, administrator of the estate of Ann Tuttle, for the same cause of action as that set forth in the within bill in equity, to wit, services rendered from January 1, 1906, to April 5, 1921,’ concluding with a prayer that the plaintiff be required to elect whether he will prosecute the action at law or the bill in equity, and ‘that the proceeding which the plaintiff shall not elect to proceed with shall be dismissed.’ The record concerning this motion is under date of October 4, 1923:

‘Heard. Allowed. Let plaintiff elect as prayed on or before October 27, 1923.’

No appeal was taken from this order. On November 21, 1923, a final decree was entered, reciting that the cause came on to be heard ‘upon a motion for final decree because of the failure of the plaintiff to elect on or before October 27, 1923, in accordance with order of court,’ and concluding:

‘It is hereby ordered, adjudged and decreed: That a final decree be and hereby is entered of ‘bill dismissed with costs to the defendant in the sum of $8.49 and that execution issue therefor.’'

[144 N.E. 232]

The plaintiff's appeal brings the case here.

The pleading entitled ‘Motion to Require Plaintiff to Elect’ is unknown to equity practice. It was improper. The facts therein stated should have been embodied in a plea in abatement. But the record recited that there was a hearing on the motion. That simple recital in such connection as this here disclosed imports that the party against whom...