Galvin v. Bay State Harness Horse Racing & Breeding Ass'n, Inc.

• Decision Date: 01 February 1962
• Citation: Galvin v. Bay State Harness Horse Racing & Breeding Ass'n, Inc., 179 N.E.2d 819, 343 Mass. 520 (Mass. 1962)
• Parties: William J. GALVIN v. BAY STATE HARNESS HORSE RACING AND BREEDING ASSOCIATION, INC. et al.
• Court: Supreme Judicial Court of Massachusetts

Page 819

179 N.E.2d 819

343 Mass. 520

William J. GALVIN v. BAY STATE HARNESS HORSE RACING AND BREEDING ASSOCIATION, INC. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 9, 1961.

Decided Feb. 1, 1962.

William C. Madden, Boston, for plaintiff.

Gerald Gillerman, Cambridge, for defendant Bay State Harness Horse Racing and Breeding Ass'n., Inc.

Oliver O. Ward, Melrose, for defendant Thomas J. Colbert, exr.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER and KIRK, JJ.

WILKINS, Chief Justice.

This bill in equity, brought on February 8, 1951, was before us five years ago. Galvin v. Bay State Harness Horse Racing &amp Breeding Ass'n Inc., 335 Mass. 364, 141 N.E.2d 287. It has since become a procedural nightmare. As originally filed, the bill sought to establish an oral contract with the defendant Bowser whereby the plaintiff was to receive from Bowser a stock interest in each of the defendants Bay State Harness Horse Racing and Breeding Association, Inc. (Bay State) and Norfolk County Concessionaires, Inc. The only relief sought against the corporations was to restrain transfer of Bowser's stock pending suit. A master's report was adverse to the plaintiff, and the case came here on the plaintiff's appeals from an interlocutory decree which overruled exceptions and confirmed the master's report and from a final decree dismissing the bill. Our consideration of the case resulted in a rescript dated January 31, 1957: 'Interlocutory decree affirmed. Final decree affirmed with costs of the appeal to the defendant Paul F. Bowser.'

Nearly four years elapsed without the entry of a final decree after rescript. Then on December 8, 1960, the plaintiff filed in the Superior Court a motion to amend his bill of complaint by adding a claim against Bay State for $6,000 for the balance of sums advanced to it by the plaintiff. This motion was denied without prejudice on December 16, 1960, and the plaintiff was given leave 'to move to conform bill of complaint to findings.' On that date suggestion was made of the death of Bowser on July 17, 1960, and the executor under his will was substituted as a party defendant. Compare MacDonald v. Gough, 327 Mass. 739, 741, 101 N.E.2d 124, and cases cited. On December 22, 1960, the plaintiff filed a new motion to amend his bill, which, with somewhat fuller allegations, was substantially the same as the earlier motion except that the amount asked for sums advanced was increased to $9,000 and recovery was sought in the alternative from Bay State 'or the defendant Paul F. Bowser,' recently represented deceased. On January 12, 1961, this motion was allowed by a second judge. On February 16, 1961, the plaintiff filed a motion to take the amended bill pro confesso for failure of the defendants to answer. This motion was denied by a third judge on February 28, 1961. On March 13, 1961, the third judge allowed the defendants' motion for entry of final decree after rescript, two similar motions having been denied by other judges without prejudice, and a final decree was entered dismissing the bill with costs. The plaintiff appealed from the denial of the motion to take the amended bill pro confesso, the allowance of the motion for final decree, the entry of the decree, and the denial of his motion to advance the case for 'speedy trial.'

Also here are appeals by the defendants from the action of each of the first two judges. These we need not decide.

The plaintiff argues solely the appeal from the decree of the third judge dismissing the bill. Only an interlocutory or a final decree may be the subject of an appeal. G.L.(Ter.E...