Lyon v. Sharpe
| Decision Date | 30 November 1944 |
| Citation | 57 N.E.2d 910,317 Mass. 283 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | OTTO S. LYON v. HOWARD D. SHARPE & others. |
October 4, 1944.
Present: FIELD, C.
J., LUMMUS, QUA RONAN, & SPALDING, JJ.
Equity Jurisdiction, Trespass. Equity Pleading and Practice, Plea. Probate Court, Jurisdiction.
A Probate Court had no jurisdiction of a proceeding to prevent a trespass upon real estate and interference with personalty thereon if such proceeding had no relation to any decedent's estate or other special subject placed within its jurisdiction by statute; and a suit in equity of the same nature in the Superior Court between the parties to such proceeding in the Probate Court and other parties should not be abated because of the pendency of such proceeding in the Probate Court.
BILL IN EQUITY filed in the Superior Court on January 3, 1944. The suit was heard by Hammond, J., on a plea in abatement.
A. M. MacNeil, for the plaintiff. No argument nor brief for the defendants.
This bill in equity was brought in the Superior Court by Otto S. Lyon against five defendants, among whom was Marjorie S. Lyon. Disregarding immaterial allegations, the gist of the bill is that the plaintiff is the owner of real estate in Belmont and of personal property thereon; that all of the defendants have forcibly entered upon the premises in violation of the plaintiff's rights and intend to damage the real estate and wrongfully to damage and remove personal property therefrom, to the irreparable injury of the plaintiff; and that the plaintiff has no adequate remedy at law. The prayers are for the establishment of the plaintiff's rights in the personal property, for injunctive relief, and for damages. Without passing upon aspects of this bill not involved in the present appeal, essentially the bill is one to restrain all the defendants from a continuing trespass with anticipated irreparable injury to the plaintiff. It is a type of bill within the general equity jurisdiction of the Superior Court. G. L. (Ter. Ed.) c. 214 Section 1. See Lynch v. Union Institution for Savings, 159 Mass. 306 , 308; Ferrone v. Rossi, 311 Mass. 591, 593; Am. Law Inst. Restatement: Torts, Section 158, comment I.
To this bill all the defendants pleaded in abatement that when this suit was brought a suit in equity was already pending "on the same cause of action" between the present plaintiff (apparently as a defendant) and the present defendant Marjorie S. Lyon in the Probate Court of Middlesex County that the present plaintiff had appeared in that court and had moved to dismiss for lack of jurisdiction and had filed an answer; that a hearing on his motion to dismiss had been held; and that his motion had been denied by the court. The plea further stated that the Probate Court had enjoined the present plaintiff against interfering with Marjorie S. Lyon's possession of all property described in the plaintiff's bill, and that that court had jurisdiction over the subject matter of this suit and over all the parties "alleged to be joined" with the defendant Marjorie S. Lyon. On this plea were indorsed the words, "After hearing allowed by the court." On the same day an interlocutory decree sustaining the plea and a final decree dismissing the bill were entered. The plaintiff appeals.
Although the indorsement on the plea that it was "allowed" would be appropriate if the hearing had been only as to the legal sufficiency of the plea and not as to its truth, yet the entry of an interlocutory decree sustaining the plea and of a final decree dismissing the bill leads to the conclusion that the plea was fully heard upon the facts. Moran v Manning, 306 Mass. 404 , 408, and cases cited. See Cohn v. Cohn, 310 Mass. 126 , 127-128. Precisely what those facts were we do not...
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