Keown v. Hughes, 1454.

• Citation: 265 F. 572
• Decision Date: 28 May 1920
• Docket Number: 1454.
• Parties: KEOWN v. HUGHES et al.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

265 F. 572

KEOWN v. HUGHES et al.

No. 1454.

United States Court of Appeals, First Circuit.

May 28, 1920

James A. Keown, of Boston, Mass., pro se.

Freeman Hunt, of Boston, Mass., for appellees.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

This is an appeal from a final decree of the District Court for the District of Massachusetts, dismissing, as to the four defendants, Hughes, Trudo, Sullivan, and Hughes administrator, a bill in equity brought by the plaintiff against his wife, Mary E. Keown, as principal defendant, and five other defendants, including the four just named.

The bill alleges that the plaintiff's wife obtained title to five parcels of real estate, or to the securities based thereupon, or the proceeds of sales thereof, expressly agreeing to hold said real estate, securities, and proceeds in trust for the plaintiff; that she has repudiated this agreement; also that she has obtained various articles of his personal property, including a written declaration of trust as to the Lynn parcel, and also certain other valuable documents, and has refused to return them to her husband with whom she is no longer living.

The four parties defendant against whom the bill was ordered dismissed by the District Court are described as follows:

(a) James J. Hughes is said to be the husband of Margaret T Hughes, deceased, Margaret being the sister of the principal defendant, Mary E. Keown. Legal title to one of the parcels of real estate situated in Lynn is alleged to have been conveyed during her lifetime to the said Margaret. This is one of the parcels that the plaintiff seeks to recover. Hughes is also, as administrator of his said wife, made a party defendant.

(b) The defendant Eugene F. Trudo is described as the brother of the defendant Mary E. Keown. He is alleged to have acted as agent, apparently for the collection of rents of one of the parcels situated in Auburndale, and to a less extent of the Lynn property. The implication is that Trudo should account to the plaintiff for collections. But in this, as in other matters, the bill is confused and ambiguous.

(c) The defendant Margaret A. Sullivan is described as the aunt of the defendant Mary E. Keown, and is alleged to have made an attachment of the Auburndale parcel of property in 'a fictitious suit without merit and as a part of a general combination to despoil the complainant. ' A conveyance of this real estate, free from this attachment, is the relief sought.

A fifth defendant, Daniel A. Poling, is described as a tenant occupying the Auburndale property. The record states that on June 25, 1918, an answer was filed by this defendant; but this answer nowhere appears in the record.

The bill, which the plaintiff brings pro se, is, as the District Court said, confused and informal.

All the defendants, except Poling, made motions to dismiss for want of equity. The District Court allowed these motions as to the defendants Hughes, Hughes, administrator, Trudo, and Sullivan, and entered a final decree in their favor. The motion of the defendant Mary E. Keown was denied. The plaintiff appealed to this court. The motions were allowed, not on the basis of want of equity, but on the ground that against these defendants the matters in controversy had been already determined by proceedings in the Supreme Judicial Court of Massachusetts. The District Court's opinion sets forth that the record in Keown v. Keown, 230 Mass. 313, 119 N.E. 785, 'was offered in evidence without objection at the hearing of this motion and has been considered. ' But that record is made no part of the record now before us. We have no legal means of knowing what it contains. It is true that the second paragraph of the plaintiff's bill alleges as follows:

'That this action was entered in the superior court for Suffolk county, commonwealth of Massachusetts, by his attorney and contrary to his wishes, on or about April 7, 1917, in an action, numbered 14324 Equity, to recover the real property, and also one in the superior court of Essex county and numbered 1675 to recover the personal property, the docket entries in the two cases being attached to this complaint and marked Exhibits A and B, and made a part thereof. The complainant believes, and has reason to believe, and the docket and pleading tends to show, that he cannot, in the courts where he had entered his bills in equity, nor in any other court in Massachusetts to which he may remove the same can he get justice, owing to local bias and prejudice.'

It is also true that the docket entries (Exhibit A, supra) indicate that in the Suffolk county case demurrers were sustained, and a final decree dismissing the bill affirmed, on a rescript from the Supreme Judicial Court, on January 11, 1918. The bill in this case was filed on June 3, 1918. The docket entries of the Essex county case do not indicate a final disposition of that case; nor is there anything before this court to indicate what relation, if any, the Essex county case had to the Suffolk county case, or to the case now before this court.

While the District Court, receiving the record in Keown v. Keown, 230 Mass. 313, 119 N.E. 785, in evidence, found that that case and the present case 'are largely identical,' he also found or ruled that the present case raised new issues as to the effect of the California law on the plaintiff's claim to a mortgage of $11,000, given by Margaret T. Hughes to the defendant Mary E. Keown, and also as to the claim to personal property described in the bill. But this finding or ruling as to the extent of the identity between the two cases rested upon a record which is not before us, either as pleading or as evidence; in its absence the plaintiff is necessarily deprived of his legal right to a review by this court.

The plaintiff's third assignment of error is to the effect that the District Court could not, on its own initiative, make a finding of former adjudication, inasmuch as that issue was not made on the pleadings or records filed in this case.

It is clear that former adjudication should ordinarily be set up by plea or answer. See 9 Ency. Pleading and Practice, 612; Desert King Mining Co. v. Wedekind (C.C.) 110 F. 873, 877, where it is said to be well settled that a motion to dismiss is not a proper mode of raising the defense of former adjudication.

Of course, if a bill on its face presents fully the record of a former case, the question of estoppel may be raised by motion to dismiss or by demurrer. See 9 Ency. Pleading and Practice, 613; Greenup v. Crooks, 50 Ind. 410; Williams v. Cheatham (1896), 99 Ga. 301, 25 S.E. 698.

But frequently, perhaps generally, former adjudication involves close questions of fact, and not merely questions of law. Clearly there is not enough in the record before us to justify the attempt of the court below to determine this issue, on a motion to dismiss for want of equity. The defendants should have been allowed to plead this defense; under equity rule 29 (33 S.Ct. xxvi) the issue thus presented might then have been 'separately heard and disposed of before the trial of the principal case in the discretion of the court. ' Compare Sanitary Street Flushing Machine Co. v. Studebaker Corp. (D.C.) 226 F. 797.

A similar or closely analogous situation was dealt with by this court in Sutton v. Wentworth, 247 F. 493, 499, 160 C.C.A. 3, et seq. See, also, Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195; Bartell v. United States, 227 U.S. 427, 33 Sup.Ct. 383, 57 L.Ed. 583; Foye v. Patch, 132 Mass. 105, 110, and cases cited. See, also, Hoseason v. Keegen, 178 Mass. 247, 59 N.E. 627; United States v. Cal. & Ore. Land Co., 192 U.S. 355, 24 Sup.Ct. 266, 48 L.Ed. 476.

While the record in this case was unusual, in that the plaintiff, in the second paragraph quoted above, expressly alleged that he had brought 'this action' in the state court, yet as the motion to dismiss did not set up former adjudication, and as the record of the case in the state court is not made a part of the record before us, we are compelled to hold that the court below erred in dismissing the bill as to these four defendants.

The decree dismissing the bill as to these four defendants should be vacated; their motions to dismiss denied; answers should be filed raising all pertinent issues, including res adjudicata.

The record presents another matter with which this court is constrained to deal. It is the obvious duty of this and of every other court to protect its records from being made a vehicle of scandal, insult and abuse of other courts, or of parties, or of witnesses. Erskine v. Garthshore, 18 Ves.Jr. 114; Green v. Elbert, 137 U.S. 615, 624, 11 Sup.Ct. 188, 34 L.Ed. 792; Kelley v. Boettcher, 82 F. 794, 797, 27 C.C.A. 177; 1 Foster, Fed. Pr. (4th Ed.) Sec. 68; Langdon v.

Goddard, 3 Story, 13, 23, Fed. Cas. No. 8,061; Dan. Ch. Pl. & Pr. (6th Am. Ed.) 351; Ex parte Simpson, 15 Ves. 476; Story's Eq. Pl. (10th Ed.) Sec. 270; Wierse v. United States, 252 F. 435, 442, 164 C.C.A. 359; Thornton, Attys. at Law, Secs. 785-790.

In Ex parte Simpson, 15 Ves. 477, Lord Eldon said:

'If that which is stated is material to the issue, it may be false, but cannot be scandalous; if relevant, it is not impertinent, though scandalous in its nature; if relevant and pertinent, it cannot be treated as scandalous; and, if false, it must be dealt with in another way. But, if irrelevant, and especially if also scandalous, there would be much reason to regret that a court should not be armed with the power to protect parties

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