Keown v. Keown

• Decision Date: 11 December 1918
• Citation: 121 N.E. 153,231 Mass. 404
• Parties: KEOWN v. KEOWN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 404

121 N.E. 153

KEOWN

v.KEOWN et al.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 11, 1918.

Appeal from Superior Court, Essex County; Charles F. Jenney, Judge.

Suit by James A. Keown against Mary A. Keown and others. From decree dismissing the bill on demurrer, plaintiff appeals. Affirmed.

See, also, 119 N. E. 785.

The suit was to recover property alleged to have been wrongfully taken from plaintiff by defendant Mary A. Keown, in combination with her relatives and friends; the object being to despoil plaintiff and prevent him from getting any part of his realty and personalty, and then to compel him to compromise the wrong and to accept in settlement a small fraction of the value of the property. Plaintiff had married Mary A. Keown October 8, 1908, and lived with her until February 20, 1917, since which date they lived apart. Plaintiff alleged that he believed the marriage ceremony valid when he went through it, but at the time of filing his bill was uncertain whether the marriage was valid or not.

Jas. A. Keown, in pro. per.

RUGG, C. J.

A final decree was entered in the Superior Court to the effect that the ‘case came on to be heard * * * upon the discontinuance heretofore filed by the plaintiff and thereupon, upon consideration thereof, and after hearing all parties, it is ordered, adjudged and decreed (1) that the bill be and it hereby is dismissed as to the defendants Mary E. Keown and Eugene F. Trudo,’ and (2) for costs as stated. The plaintiff appealed from that decree and now contends that he is entitled as matter of law to have it stated in the decree that it is dismissed for want of prosecution or without prejudice, or in some form which shall indicate that the decree was not entered upon its merits and thus not be a bar to the bringing of another suit for the same cause of action. Whether there is any merit in that contention depends upon the state of the record.

The plaintiff's amended bill was filed August 10, 1917. A paper entitled ‘Defendants' Answer’ was filed on the same date. That paper was in no sense a proper answer in equity because it was merely a general denial in form such as would have been appropriate in an action at law. In no particular did it conform to Superior Court Equity Rule 7, which requires an answer to be full, direct and specific respecting every material allegation or statement in the bill. According to equity practice it should have been treated as no answer at all. No replication appears ever to have been filed. See now St. 1918, c. 257, § 405. On September 5, 1917, the present defendants filed a demurrer. That demurrer is printed in the record. It goes to the merits of the plaintiff's grounds for equitable relief. It does not bear the certificate of the attorney required by R. L. c. 173, § 16. No objection appears of record to have been taken to the form of the demurrer, and none has been argued by the plaintiff in this court. It is open to grave doubt whether such an objection could be relied upon by the plaintiff at this stage of the proceedings. However that may be, other parts of the record are decisive. A second demurrer was filed by these defendants on September 20, 1917. But it is not printed in the record. It must be presumed against the appealing party, whose duty it was to print a sufficient record to present the points upon which he relies, that the second demurrer was sufficient in form and was the one upon which the court took action. The original papers in the case confirm this presumption. While no demurrer can be filed as matter of right after answer, yet by rule 9 of the Superior Court Equity Rules, it may be filed by leave of court. It must be taken that leave to file this demurrer was granted by the court, if any leave was needed, because a hearing was had. On September 27, 1917, a docket entry was made of this tenor:

‘Demurrer sustained, leave granted to plaintiff to file amended bill in thirty days. If such amended bill is not filed, decree is to be entered dismissing bill with costs.’

No amended bill has been filed at any time since. On September 29, 1917, there is a docket entry, ‘Plaintiff appeals.’ One or two appeals by the plaintiff from interlocutory orders appear on the docket, but none of these appeals have been printed or argued. Under date of December 3, 1917, appears this docket entry: ‘Supplemental bill of complaint.’ No such paper is printed in the record. In any event it could not have been in compliance with the order of the court of September 27, 1917. It does not appear that it was filed or that leave of court therefor ever was granted. It should be disregarded.

There is on October 13, 1917, this docket entry: ‘Bill of exceptions of plaintiff.’ This bill of exceptions is not printed and there is nothing to indicate to what it relates or whether it refers to these defendants. It does not appear to have been allowed. It has not been argued. No excuse is disclosed for delay in presenting it for allowance. It was subject to the terms of St. 1911, c. 212, which applies to proceedings in equity. See McCusker v. Geiger, 195 Mass. 46, 48, 80 N. E. 648. It should have been dismissed, because manifestly before the entry of the final decree more than a reasonable time had elapsed for presentation to the court for allowance. No determination is necessary whether under these circumstances the entry of the final decree eight months later, in the absence of anything further, must be held to import a decision that the exceptions had not been presented to the court for allowance within a reasonable time. The filing of a discontinuance of the action by the plaintiff was a waiver of these exceptions and all intervening appeals. They constitute now no bar to the final disposition of the cause. In re Frank, Petr., 213 Mass. 194, 99 N. E. 968.

The plaintiff filed on June 12, 1918, a statement that he discontinued the action. On July 10 following the final decree above quoted was entered.

The only point argued and the point to be decided is whether a plaintiff as of course can have his bill dismissed without prejudice after a demurrer to it has been sustained.

It is the general rule in equity that a plaintiff has a right ‘to dismiss his bill at any time before a hearing upon the payment of the costs.’ Kempton v. Burgess, 136 Mass. 192;Lakin v. Lawrence, 195 Mass. 27, 80 N. E. 578;Weston v. Railroad Commission, 205 Mass. 94, 97, 91 N. E. 303;Lloyd v. Imperial Machine Stamping & Welding Co., 224 Mass. 574, 113 N. E. 456. The plaintiff does not bring himself within this comprehensive statement of the rule, because there has been a hearing upon the demurrer. Hearing is a word sufficiently broad in meaning to include a judicial examination of the issue between parties, whether of law or fact. McArthur Bros. Co. v. Com., 197 Mass. 137, 140, 83 N. E. 334. But this general statement of the rule was given an amplified exposition in Hollingsworth & Vose Co. v. Foxborough Water Supply District, 171 Mass. 450 at 452,50 N. E. 1037, in these...