Israel Nesson v. Franklin H. Gilson.

• Decision Date: 19 May 1916
• Citation: 224 Mass. 212
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ISRAEL NESSON & another v. FRANKLIN H. GILSON.

224 Mass. 212

ISRAEL NESSON & another v. FRANKLIN H. GILSON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1916

March 14 1916.

Present: RUGG, C.

J., LORING, BRALEY & DE COURCY, JJ.

Equity Jurisdiction, To enjoin enforcement of judgment at law. Equity Pleading and Practice, Master's report exceptions, motion to recommit. A court of equity has no supervisory jurisdiction over courts at law.

In a suit in equity brought to restrain the enforcement of a judgment at law which was entered after two trials on the merits and after the merits had been considered for a third time on a petition for a writ of review, which was denied, where the only new matter alleged in the bill was disposed of completely by the findings of a master and was shown to be without foundation it was ordered that the bill be dismissed with costs.

In a suit in equity exceptions to a master's report based on objections that certain findings of the master were not warranted by the evidence or that certain findings were not made by the master, if the evidence on which the master acted is not reported, must be overruled. A motion in a suit in equity to recommit a master's report, in order that he may report the evidence that was given in previous trials at law between the same parties and may make findings on questions that were decided or involved in those trials and are not material to the suit in equity, must be denied.

I. Nesson, pro se, submitted a brief. C. A. Bunker, for the defendant.

DE COURCY, J. In 1899 a promissory note for $13,000, secured by a mortgage upon real estate, was given by the plaintiff Israel Nesson to Mary E. Walker, now deceased. At a foreclosure sale of the mortgaged premises in 1904, the property was bid in on account of the mortgagee for $10,000. After the death of Mrs. Walker, the defendant Gilson, as administrator of her estate, brought an action for the balance due upon the note. Nesson's defence in substance was that Mrs. Walker had agreed to take the property for the amount of the mortgage, that a friendly foreclosure accordingly took place and that Mrs. Walker's failure to bid the full amount of the mortgage was a breach of her agreement.

The action was heard by a judge of the Superior Court in 1907, who made a finding for the plaintiff, and later denied a motion for a new trial. Exceptions filed by Nesson were sustained by this court on the ground that there was some evidence of a consideration for the alleged agreement. Gilson v. Nesson, 198 Mass. 598 .

A second trial was had before another judge of the Superior Court, in 1910, and again the finding was for the plaintiff. Nesson's exceptions taken at that trial were overruled by this court in 1911. Gilson v. Nesson, 208 Mass. 368 .

In March, 1911, judgment was entered on the finding. Later Nesson filed a petition for a writ of review; and this was heard upon the merits by a third judge of the Superior Court and was denied. Other litigation between the parties, growing out of the same controversy, need not be recited.

The present suit in equity ^[*] was brought to restrain the enforcement of the judgment described above. The allegations of the bill, so far as material, relate mostly to facts and evidence already considered at the trials on the merits and no longer open.

The only ground on which the bill could have any standing in equity is that set forth in the paragraph numbered twenty-six A. Therein the plaintiff alleges that the defendant Gilson, conspiring with four other persons named, "caused and procured the said Millen and...