Nashua & L.R. Co. v. Boston & L.R. Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD
• Citation: 47 N.E. 606,169 Mass. 157
• Parties: NASHUA & L.R. CO. v. BOSTON & L.R. CO.
• Decision Date: 10 September 1897

169 Mass. 157
47 N.E. 606

NASHUA & L.R. CO.
v.
BOSTON & L.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 10, 1897.

Appeal from superior court, Suffolk county.

Bill of review by the Nashua & Lowell Railroad Company against the Boston & Lowell Railroad Company. From a decree sustaining a demurrer of defendant and dismissing the bill, plaintiff appeals. Bill dismissed.

[169 Mass. 157]F.A. Brooks and G.S. Hale, for plaintiff.

J.H. Benton, Jr., for defendant.

[169 Mass. 158]FIELD, C.J.

This is a bill of review filed in the superior court to review a decree of that court entered on October 31, 1895, for error of law apparent on the face of the record. The defendant filed a motion to dismiss the bill, and a demurrer. The motion to dismiss was stated to be “because it doth not appear that the same was filed by leave of court.” The causes of demurrer are stated to be: “First, that said bill doth not appear to be filed by leave of court first had and obtained; second, that the matters and things in said bill set forth do not in manner and form in which the same are stated entitle the plaintiff to the relief prayed for, or to any relief.” The superior court overruled the motion to dismiss, sustained the demurrer, and dismissed the bill, with costs, and the plaintiff appealed to this court from the decree dismissing the bill. The cause coming on to be heard in this court, it appeared that the plaintiff had not set out in the bill a full and exact copy of the pleadings, proceedings, and decrees in the original suit in the superior court, and leave was obtained in this court to file a certified copy of the same in this court, without prejudice to the rights of the defendant to contend that the defect, if any, in the bill as filed in the superior court, could not be cured in this way. The superior court undoubtedly overruled the motion to dismiss on the ground that no leave of the superior court was necessary to file a bill of review for error of law appearing on the face of the record, which is undoubtedly the law. Elliott v. Balcom, 11 Gray, 286; Story, Eq.Pl. § 405. The bill of review states, in substance, that the plaintiff brought an action at law against the defendant in the superior court on September 30, 1884, on a certain claim therein alleged, to which, by amendment of the declaration, three other claims were added; that said action by leave of said court was amended into a suit in equity, and a bill in equity was substituted for the declaration at law; that the defendant appeared and demurred to the bill

[47 N.E. 607]

for want of equity; that the demurrer was overruled, and the defendant answered, and afterwards amended this answer, when, issue being joined, the cause was heard by a justice of the superior court, who found for the defendant on the first and second claims set forth in the bill, and for the plaintiff on the third and fourth claims, and entered a decree for the plaintiff for a certain sum of money on each of said third and fourth claims as follows: “It is ordered, adjudged, and decreed as follows, viz.: That the [169 Mass. 159]plaintiff is entitled to recover and do recover of the defendant the sum of twenty-five hundred seventy-four 32/100 dollars, with interest thereon from and after April 30, 1880,-said sum and interest amounting at this time to forty-three hundred thirty-four 30/100 dollars,-on account of the third claim set forth and described in the plaintiff's bill of complaint; being a claim for thirty-one per cent. of the value of joint material used by defendant in building the Middlesex Central Railroad. Also, that the plaintiff is entitled to recover and do recover of the defendant the further sum of $9,711.88, with interest thereon from and after April 30, 1880, *** on account of the fourth claim set forth and described in the plaintiff's bill of complaint; being the claim for the value of three hundred tons of new iron rails to be placed by the defendant in the plaintiff's track, but not so placed. *** Also, that the plaintiff recover its costs of suit to be taxed by the clerk.” From this decree the defendant appealed to this court. As the plaintiff did not appeal, the first and second claims were out of the case on the appeal, and the third and fourth claims were thereafter called the first and second claims. The case was heard on the appeal by this court, and on October 21, 1892, the court sent down to the superior court the following rescript: “It is ordered that the clerk of said [superior] court make the following entry under said case in the docket of said court, viz: ‘Decree for the plaintiff for $3,010.68, with interest, unless the superior court, by its finding, has determined or shall determine that in point of fact the cost of improved condition on the defendant's road, which was agreed to be $9,711.88, was paid from the separate funds of the plaintiff, and not from the joint fund of the two railroad companies.’ ” The decision of this court is reported in 157 Mass. 268, 31 N.E. 1060. Afterwards the plaintiff obtained leave of the superior court to amend its bill, and the bill was accordingly amended, and the defendant amended its answer; setting up, among other things, that the claim had been adjudicated in a former suit between the same parties in the circuit court of the United States for the district of Massachusetts. Thereupon the case was referred by the superior court to a master, and a hearing had before the master, who made his report to that court. It is alleged that, at the hearing before the master, certain evidence was offered by [169 Mass. 160]the plaintiff and admitted by the master subject to the objection of the defendant that it was not competent, and was reported by the master to the superior court for its consideration, and by that court was excluded as incompetent, subject to the objection and exception of the plaintiff. The cause then came on to be heard in the superior court upon the last claim made by the plaintiff, called after the first appeal of the second claim; and the presiding justice, against the objection of the plaintiff, declined to pass upon the issues raised by the pleadings relating to that claim, but reported the cause upon the pleadings, and the facts found by him, to this court, for its determination. This court entertained the cause so reported; considered, among others, the new defense introduced under the amended answer of the defendant in the superior court; and on September 5, 1895, sent down to the superior court a rescript as follows: “Decree for plaintiff for $3,010.68 and interest, unless in point of fact the demand in suit was adjudicated upon in the former suit.” The decision of this court is reported in 164 Mass. 222, 41 N.E. 268. Afterwards, to wit, on October 31, 1895, the cause came on for final hearing in the superior court, and that court on that day entered the following decree: “It is ordered, adjudged, and decreed, in pursuance of said rescript, that the plaintiff is entitled to...