Farnum v. Brady

• Decision Date: 08 October 1929
• Citation: 168 N.E. 165,269 Mass. 53
• Parties: FARNUM v. BRADY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 53

168 N.E. 165

FARNUM

v.BRADY (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 8, 1929.

Report from Superior Court, Worcester County; N. P. Brown, Judge.

Two actions by Eugene S. Farnum against Francis P. Brady. On report on agreed statement of facts. Cases to stand for trial.

C. B. Rugg, of Worcester, for plaintiff.

C. C. Milton and F. L. Riley, both of Worcester, for defendant.

CROSBY, J.

The plaintiff by writs, each of which is dated April 10, 1922, brought two actions of contract against the defendant in the Superior Court for the County of Worcester. The writs were duly entered and a declaration and answer in each case were filed. On October 6, 1924, under Rule 63, afterwards Rule 62, of the Superior Court, the actions were dismissed for lack of prosecution. On May 4, 1925, the plaintiff brought these actions in the Superior Court to recover for the same causes of action as were originally set forth. The defendant pleaded that the present cases are barred by reason of the earlier cases having been dismissed for lack of prosecution. It is agreed by the parties that neither action was barred by the statute of limitations when the present actions were brought, and that the sole question presented for our determination is whether the dismissal under the above rule bars recovery.

Rule 62 is as follows: ‘On the Tuesday after the first Monday of September in each year the clerk in each county, except Suffolk, shall send to counsel in every case which has remained upon the docket without action other than placing on the trial list or marking for trial, for two years preceding said date, notice that such case will be dismissed on the first Monday of October following, unless a motion that such case be allowed to remain on the docket alleging cause therefor with affidavit in support thereof shall be filed. If no such motion is filed before said first Monday of October, the case without further notice or hearing shall thereupon be dismissed, and judgment entered forthwith. At such time thereafter as may be fixed by the court of which notice shall be given as the court may order, the list of cases in which such motions have been filed shall be called, such motions heard and such order of dismissal or otherwise made as the court may determine.’

It is settled that the dismissal of an action at law in the Superior Court under Rule 62 constitutes a final judgment, and ends that case. Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92;Shour v. Henin, 240 Mass. 240, 242, 133 N. E. 561;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Cheney v. Boston & Maine Railroad, 246 Mass. 502, 506, 141 N. E. 502;Fairbanks v. Beard, 247 Mass. 8, 9, 141 N. E. 590, 30 A. L. R. 698. In Donovan v. Danielson, 263 Mass. 419, 422, 161 N. E. 807, 808, which was a suit in equity, it was said that ‘the purpose of such general order and the dismissal of cases pursuant to it on calling of the list are to rid the records of the court of cases which have lost their vitality because of the failure of parties to prosecute their rights under the bill. * * *’

Although the order of dismissal in the original cases is a final judgment, and disposes of them unless such judgmentis vacated by order of the court, it does not follow that such orders are a bar to the causes of action on which the plaintiff seeks to recover. The action of the court in the original actions is in no sense an adjudication upon the causes of action for which the plaintiff seeks to recover. The contention of the defendant that the defense of res judicata is a bar cannot be sustained. Res judicata is not a defense unless a judgment has been rendered on the merits. ‘* * * A cause of action once finally determined,...