Dorsey v. Corkery
| Citation | 116 N.E. 870,227 Mass. 498 |
| Parties | DORSEY v. CORKERY et al. |
| Decision Date | 27 June 1917 |
| Court | United States State Supreme Judicial Court of Massachusetts |
OPINION TEXT STARTS HERE
Appeal from Supreme Judicial Court, Suffolk County.
Petition by Mary Louise Dorsey against Henry F. Corkery and others. From the decree rendered, respondents appeal. Reversed.
Fowler, Bauer & Kenney, of Boston, for appellants.
Chas. M. Davenport, of Boston, for appellee.
This is a petition under R. L. c. 147, § 5, to fill a vacancy caused by the resignation of a trustee under a written instrument which makes no adequate provision for supplying the vacancy. The petition was filed in this court March 23, 1916, by the defendant in the suit of Corkery v. Dorsey, 223 Mass. 97, 111 N. E. 795, then pending, after rescript, before a single justice, but was not filed by the direction of the justice or in connection with the pending suit.
March 24, 1916, the present appellants filed a plea in abatement wherein in substance it is alleged that the appellants filed a petition March 16, 1916, in the probate court of Suffolk county, for the appointment of a new trustee to fill a vacancy arising from the resignation of the former trustee, that said court had taken jurisdiction of the subjectmatter and of the parties, and that the petition was still pending in that court. No replication was filed. The plea was set down for hearing, came on to be heard and was argued by counsel; and thereupon, on March 28, 1916, upon consideration thereof, the single justice by a final decree ‘ordered, adjudged, and decreed that the respondents' plea in abatement and motion to dismiss be, and the same hereby are, overruled,’ and by the same decree appointed a new trustee to fill the vacancy in succession to the old trustee resigned. The respondents duly appealed to this court.
The only question before us is whether the decree is justified by the record. The petitioner by setting the plea down for argument admitted the truth of all the facts stated in the plea. The inquiry thereupon is substantially the same as on a demurrer in an action at law. If held insufficient in point of law, the plea is overruled and the cause proceeds as if no such plea had been filed; but if held sufficient, the plaintiff may take issue upon it and if found for the defendant will determine the suit. Newton v. Thayer, 17 Pick. 129;Davidson v. Johnson, 16 N. J. Eq. 112;Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. 534, 30 L. Ed. 684. Upon the admitted facts the probate court, having concurrent jurisdiction with this court, received the first application for the appointment of a trustee under R. L. c. 147, § 5, and ordered a citation to issue; proceedings...
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Reilly v. Selectmen of Blackstone
...sufficiency of the plea as matter of law was the single matter to be heard, no evidence rightly could be introduced. Dorsey v. Corkery, 227 Mass. 498, 500, 116 N. E. 870. The ruling that evidence would be received, coupled with the finding at the end of the hearing, leads to the conclusion ......
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Berenson v. French
...decree, adjudging the plea to be sufficient in law, was entered rightly. Harrington v. Harrington, 107 Mass. 329, 334;Dorsey v. Corkery, 227 Mass. 498, 500, 116 N. E. 870. The case thereafter came on for hearing on the merits, the court sustained the plea, and, a decree having been entered ......
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...pending before it. Nash v. McCathern, 183 Mass. 345, 67 N. E. 323;Allen v. Hunt, 213 Mass. 276, 100 N. E. 552;Dorsey v. Corkery, 227 Mass. 498, 500, 116 N. E. 870. See Consolidated Ordnance Co. v. Marsh, 227 Mass. 15, 116 N. E. 394. There is nothing in Nashua Savings Bank v. Abbot, 181 Mass......