Gulesian v. Newton Trust Co.
| Decision Date | 16 February 1939 |
| Parties | GULESIAN v. NEWTON TRUST CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Bill in equity by Moses H. Gulesian against the Newton Trust Company and others, wherein the named defendant filed a counterclaim. From interlocutory decrees and from a final decree in favor of named defendant on its counterclaim, the complainant appeals.
Order in accordance with opinion.Appeal from Superior Court, Suffolk County; Hurley, Judge.
T. B. Shea and G. J. Barry, both of Boston, for appellant.
E. F. McClennen, L. McClennen, and G. MacClain, all of Boston, for appellees.
A mortgagor brings this bill against the mortgagee Newton Trust Company and certain individuals who, the plaintiff alleges, conspired with that mortgagee to deprive the plaintiff of his land by interfering with the management of it and ultimately by foreclosing the mortgages. The defendant Newton Trust Company filed a counterclaim under Rule 32 of the Superior Court (1932), based on unpaid mortgage notes given to it by the plaintiff with the same mortgages. It prayed for a decree ordering payment of the notes and declaring that the mortgagee had a right to foreclose by sale. The findings of the judge established the counterclaim but not the bill. On June 15, 1938, a final decree was entered, dismissing the bill with costs, and giving to the defendant Newton Trust Company the relief prayed for by its counterclaim.
1. After the counterclaim was filed but before the plaintiff answered it, he moved to have his bill dismissed without prejudice. His motion was denied, and he appealed as from an interlocutory decree. Nelson Theatre Co. v. Nelson, 216 Mass. 30, 33, 102 N.E. 926;Graustein v. Dolan, 282 Mass. 579, 583, 185 N.E. 489, and cases cited; Kaufman v. Buckley, 285 Mass. 83, 86, 188 N.E. 607. The judge was not required to permit the plaintiff to escape from the counterclaim. Shea v. Lexington, 290 Mass. 361, 373, 374, 195 N.E. 494. Many of the findings made by the judge and expressly adjudicated by the final decree are based upon the affirmative allegations of the counterclaim, and are not merely denials of facts alleged in the bill. Those findings may prove a strong barrier to any relief to the plaintiff at law or in equity. But so far as any of those findings lie outside the scope of the counterclaim, they ought not to stand if there was error in denying the plaintiff's motion for the dismissal of his bill. The reason given by the judge for denying that motion was that it appeared that ‘decrees have been entered in this suit pursuant to which the defendant's situation has been changed since the institution of this suit, rendering it inequitable for the plaintiff to have the advantage gained to the prejudice of the defendants.’ At the time when that motion was denied, no decrees had been entered except a decree dismissing the bill against First National Bank of Boston, which did no harm to the other defendants, and a decree granting a temporary injunction against Newton Trust Company which imposed upon that company ‘a burden, not a right.’ Bolton v. Van Heusen, 249 Mass. 503, 506, 144 N.E. 384. We are unable to see how the situation of the defendants could have changed ‘pursuant to’ either decree, so as to make it inequitable for the plaintiff to dismiss his bill without prejudice but with costs (Shea v. Lexington, 290 Mass. 361, 373, 374, 195 N.E. 494;Nicolai v. Nicolai, 283 Mass. 241, 186 N.E. 240), leaving the counterclaim unaffected. Callahan v. Mercantile Trust Co., 188 Mass. 393, 398, 74 N.E. 666;Glazer v. Schwartz, 276 Mass. 54, 176 N.E. 613. The denial of his motion, treated as an interlocutory decree, must be reversed.
2. The plaintiff filed a claim for jury trial upon the counterclaim, and a motion that issues be framed for trial by jury. From the denial of that motion he likewise appealed, as from an interlocutory decree. He had no constitutional right to trial by jury. When he voluntarily went into equity, he submitted himself to all the incidents of equity practice, including the hearing without jury of a counterclaim, even one based upon a purely legal cause of action. Rule 32 of the Superior Court (1932); Potier v. A. W. Perry, Inc., 286 Mass. 602, 607 et seq., 190 N.E. 822. In principle this is settled by Ross v. New England Mutual Ins. Co., 120 Mass. 113, 117;Parker v. Simpson, 180 Mass. 334, 344, 62 N.E. 401;Bergeron v. Automobile Mutual Liability Ins. Co., 261 Mass. 409, 158 N.E. 763. But compare Clifton v. Tomb, 4 Cir., 21 F.2d 893, 898;United States v. National City Bank of New York, 2 Cir., 83 F.2d 236, 238, 106 A.L.R. 1235. The appeal, it is true, brings up the question whether the judge should have exercised his discretion in favor of framing jury issues. Merchants' National Bank of Newburyport v. Moulton, 143 Mass. 543, 10 N.E. 251;City of Boston v. Dolan, Mass., 10 N.E.2d 275. But we see no reason to reverse his decision. Ross v. New England Mutual Ins. Co., 120 Mass. 113, 117;Culbert v. Hall, 181 Mass. 24, 62 N.E. 955;Shapira v. D'Arcy, 180 Mass. 377, 379, 62 N.E. 412;Long v. George, Mass., 7 N.E.2d 149.
3. The attempted appeal from the findings, rulings and order for decree, is worthless. No such appeal is known to equity practice. Graustein v. Dolan, 282 Mass. 579, 582, 583, 185 N.E. 489;Aronson v. Sol. & S. Marcus Co., 292 Mass. 389, 396, 198 N.E. 654;Taxiera v. Arter, 292 Mass. 537, 540, 198 N.E. 900;Milliken v. Milliken, 292 Mass. 540, 542, 198 N.E. 657;National Radiator Corp. v. Parad, Mass., 8 N.E.2d 794;Fusaro v. Murray, Mass., 15 N.E.2d 228;Schnare v. Evans, Mass., 17 N.E.2d 192;Moat v. Moat, Mass., 17 N.E.2d 710;Restighini v. Hanagan, Mass., 18 N.E.2d 1007. This has been pointed out often enough.
4. The appeal from the final decree remains for consideration. No evidence is reported. The facts voluntarily found by the judge, though possibly not shown to be all the facts upon which the final decree was based, are consistent with that decree, and in fact...
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