Corey v. Tuttle

Citation249 Mass. 135,144 N.E. 230
PartiesCOREY v. TUTTLE et al.
Decision Date23 May 1924
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

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.

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; 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.’'

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 the decision was rendered had ample opportunity to present for the court's consideration whatever he desired. Parker v. L. J. Bird Co., 221 Mass. 422, 109 N. E. 368. It is provided by G. L. c. 231, § 132, that no new trial shall be granted in any civil action ‘for any error as to any matter of pleading or procedure,’ if this court ‘deems that the error complained of has not injuriously affected the substantial rights of the parties.’ This statute, although not expressly applicable to suits in equity, is adopted in equity in the interest of uniformity and simplicity. Day v. Mills, 213 Mass. 585, 587, 100 N. E. 1113;Strout v. United Shoe Machinery Co., 215 Mass. 116, 119, 102 N. E. 312;Attorney General v. Pelletier, 240 Mass. 264, 306, 134 N. E. 407;Albiani v. Evening Traveler Co., 220 Mass. 20, 107 N. E. 406;Noyes v. Gagnon, 225 Mass. 580, 114 N. E. 949;Reynolds v. Missouri, Kansas & Texas Railway, 228 Mass. 584, 117 N. E. 913.

It seems apparent from this record that the same result would have been reached if the technically correct pleading of a plea in abatement had been filed, instead of the anomalous motion. It would have been as easy for the plaintiff to protect his rights as the case stands, by requests for rulings or otherwise, as if the pleading had been as it ought to have been. The substantial rights of the parties have not been affected by the want...

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24 cases
  • Jewett v. Keystone Driller Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 3, 1933
    ...United Shoe Machinery Co., 215 Mass. 116, 119, 102 N. E. 312;Commonwealth v. Hassan, 235 Mass. 26, 31, 126 N. E. 287;Corey v. Tuttle, 249 Mass. 135, 137, 138, 144 N. E. 230. See, also, Jones v. Arena Publishing Co., 171 Mass. 22, 28, 50 N. E. 15. The vendee under a conditional sale contract......
  • In re Keenan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 13, 1934
    ...v. Hassan, 235 Mass. 26, 31, 126 N. E. 287;Attorney General v. Pelletier, 240 Mass. 264, 306, 134 N. E. 407;Corey v. Tuttle, 249 Mass. 135, 138, 144 N. E. 230. Statutes may be found where a broader word than ‘action’ has been used. There are decisions giving to the word ‘action’ a narrower ......
  • Powers v. Heggie
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 2, 1929
    ...N. E. 120;Spear v. Coggan, 223 Mass. 156, 111 N. E. 793;Consolidated Ordnance Co. v. Marsh, 227 Mass. 15, 116 N. E. 394;Corey v. Tuttle, 249 Mass. 135, 144 N. E. 230. The pending of a suit in equity is not in itself a reason for abating a similar action at law Colt v. Partridge, 7 Metc. 570......
  • Sprague v. Rust Master Chem. Corp.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • January 14, 1947
    ...require the defendants to elect whether they were to affirm or disaffirm the agreement of Burnen with the corporation, Corey v. Tuttle, 249 Mass. 135, 144 N.E. 230, nor in denying the motions to recommit. Minot v. Minot, 319 Mass. 253, 261, 66 N.E.2d 5. The interlocutory decree is reversed;......
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