Low v. Low

• Citation: 59 N.E. 57,177 Mass. 306
• Parties: LOW v. LOW et al.
• Decision Date: 02 January 1901
• Court: United States State Supreme Judicial Court of Massachusetts

177 Mass. 306

59 N.E. 57

LOW v. LOW et al.

Supreme Judicial Court of Massachusetts, Essex.

January 2, 1901

COUNSEL

Frederick H. Tarr and Sumner D. York, for plaintiff.

John J Flaherty, for defendants.

OPINION

KNOWLTON J.

This case is founded in part on facts which appear in Low v Low, 173 Mass. 580, 54 N.E. 257. The defendants contended that the bill could not be maintained as a supplemental bill, because it was not filed by leave of the court, and for other reasons. The judge in the final decree ordered that, if leave to file the bill was necessary, such leave be granted. The report of facts which he filed under St. 1893, c. 61, to complete the record in aid of the appeal shows a ruling 'that the bill stood well as an original bill; that the relief it asks is not inconsistent with the decree in the former bill; that the decree in the former suit that a conveyance should be made, subject to certain mortgages, was not a determination that those mortgages were a valid claim as against the plaintiff; that in the original bill, the mortgagees not being made parties, no decree could be made affecting their rights, and it could not be determined whether their mortgages were a valid lien upon the land described in the bill; that, not being directly interested in the matter, it was proper for the plaintiff to leave them out; that the questions raised by the two bills are successive in their nature, and no harm was done to either party by maintaining them successively; that the decree in the suit to which they were not parties is not an adjudication which is final in this suit, or an estoppel against the plaintiff.' We are of opinion that there was no error in this ruling. While the mortgagees well might have been joined in the original suit, it was not necessary to join them, and neither they nor the original defendants are injuriously affected by the secondary proceedings to obtain relief against them. It is clear that the plaintiff is not estopped by the former decree to proceed against them, for they were not parties to the suit, and the rights of the parties in reference to the mortgages could not be adjudicated in that proceeding. Moreover, the decree did not assume to determine the effect of the mortgages. It was proper to join the mortgagors in this suit, because their rights would be affected in reference to the mortgaged property by the decision as to the effect of the mortgages upon the plaintiff's rights.

So far as the suit refers to the proceeds of the claim for damages for the laying out of the highway through the property, it was properly brought. The decree in the former suit was not a bar to this proceeding in reference to the money, for the plaintiff's right to apply to the court for further relief was expressly saved to him in it. The relief sought in this case against the former defendants is not inconsistent with the relief granted in the former case, but naturally and properly it grows out of it....