Peterson v. Hopson

• Decision Date: 17 September 1940
• Citation: 29 N.E.2d 140,306 Mass. 597
• Parties: PETERSON v. HOPSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 597

29 N.E.2d 140

PETERSON

v.HOPSON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 17, 1940.

Report from Superior Court, Middlesex County; Greenhalge, Judge.

Action by Thomas H. Peterson against Howard C. Hopson and others to compel defendants to restore to a trust, assets allegedly wrongfully diverted by them. On report from the Superior Court which entered a decree overruling a demurrer to the bill. On motion to dismiss report.

Motion to dismiss denied, and decree affirmed.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, DOLAN, and RONAN, Jj.

R. S. Warner and T. D. Lavelle, both of Boston, for plaintiff.

F. P. Garland and H. Guild, both of Boston, for defendants Cheney and others.

R. G. Dodge, of Boston, for defendants Greene and others.

Lee M. Friedman, of Boston, for defendant Furber.

LUMMUS, Justice.

On February 27, 1939, the plaintiff's first motion to amend his bill by substituting a new draft was allowed. The defendants Hopson and Mange were not residents of the Commonwealth, were not served with process, and did not appear. The other defendants demurred. On March 30, 1939, an interlocutory decree was entered by a judge of the Superior Court, overruling the demurrer. On April 1, 1939, the demurring defendants appealed. on April 6, 1939, the judge denied the motion of the demurring defendants that the case be reported under G.L.(Ter.Ed.) c. 214, § 30. On July 19, 1939, an amendment to the bill was allowed ‘without prejudice to the right of any party named as defendant to demur.’ This amendment did not affect the case of the plaintiff for relief against the defendants other than Hospon and Nange, but related to the right of the plaintiff to reach assets of Hopson and Mange in this Commonwealth. On July 28, 1939, the same defendants other than Hopson and Manage again demurred to the bill as last amended, on the same grounds that were taken in the earlier demurrer. A second judge of the Superior Court, on September 15, 1939, entered a decree reciting that ‘it appearing to the court that said demurrer raises no questions beyond those raised by the demurrer to the bill as amended on February 27, 1939, and which demurrer has been overruled,’ and ordering the later demurrer overruled. He then reported the case under G.L.(Ter.Ed.) c. 214, § 30. The plaintiff has moved in this court for dismissal of the report, on the ground that the questions raised by the second demurrer had already been decided upon the first demurrer, subject only to appeal, and that the second judge had no power to reconsider those questions or to present them to us by report.

Where there has been no change of circumstances, a court or judge is not bound to reconsider a case, an issue, or a question of fact or law, once decided. Nerbonne v. New England Steamship Co., 288 Mass. 508, 510, 193 N.E. 72;Hayes v. Hurley, 292 Mass. 109, 111, 112, 197 N.E. 471;Castle v. Madison, 113 Wis. 346, 350,89 N.E. 156. A question of law not seasonably and properly saved, cannot be revived by the simple expedient of bringing it forward again, demanding a second ruling, and claiming an exception or appeal from that second ruling. Caverly v. McOwen, 126 Mass. 222, 224;Sullivan v. Boston Bar Association, 170 Mass. 504, 49 N.E. 916;Robbins v. Brockton Street Railway, 180 Mass. 51, 61 N.E. 265;Blackburn v. Boston & Northern Street Railway, 201 Mass. 186, 189, 87 N.E. 579;Phillips v. Director General of Railroads, 251 Mass. 263, 268, 147 N.E. 96;Commonwealth v. Clifford, 254 Mass. 390, 393, 150 N.E. 181;Blankenburg v. Commonwealth, 260 Mass. 369, 376, 157 N.E. 693;Barnes v. Springfield, 268 Mass. 497, 502, 168 N.E. 78;Second National Bank of Malden v. Leary, 284 Mass. 321, 324, 187 N.E. 611;Long v. George, 296 Mass. 574, 579, 580, 7 N.E.2d 149;Arabia v. John Hancock Mutual Life Ins. Co., 301 Mass. 397, 400, 401, 17 N.E.2d 202;Conboy v. First National Bank of Jersey City, 203 U.S. 141, 145, 27 S.Ct. 50, 51 L.Ed. 128;Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557. These propositions have many illustrations. This court usually declines to reconsider questions decided upon an earlier appeal in the same case. Pingree v. Coffin, 12 Gray 288, 324;Wall v. Old Colony Trust Co., 177 Mass. 275, 279, 58 N.E. 1015;Boston Bar Association v. Casey, 204 Mass. 331, 336, 90 N.E. 584; Beach & Clarridge Co. v. American Steam Gauge & Valve Mfg. Co., 208 Mass. 121, 132, 94 N.E. 457;Taylor v. Pierce Brothers, Ltd., 220 Mass. 254, 107 N.E. 947;Rubenstein v. Lottow, 223 Mass. 227, 234, 111 N.E. 973;Clark v. New England Telephone & Telegraph Co., 231 Mass. 546, 548, 121 N.E. 497;Pizer v. Hunt, 253 Mass. 321, 333, 148 N.E. 801;Massachusetts Gasoline & Oil Co. v. Go-Gas Co., 267 Mass. 122, 129, 166 N.E. 563;Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 349, 167 N.E. 641;Cann v. Barry, 298 Mass. 186, 10 N.E.2d 88. After a decision of this court, a party has no right to a rehearing. Powers v. Sturtevant, 200 Mass. 519, 86 N.E. 789. A judge sitting without a jury need not entertain a motion for a new trial based on the ground that the finding was against the evidence or the weight of the evidence. O'Grady v. Supple, 148 Mass. 522, 20 N.E. 114;Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 502, 189 N.E. 839;Nerbonne v. New England Steamship Co., 288 Mass. 508, 510, 193 N.E. 72;Sullivan v. Boston Bar Association, 170 Mass. 504, 49 N.E. 916. A motion for a new trial or to vacate a judgment need not be entertained when based upon alleged errors of law that either were raised or could have been raised at the trial. Commonwealth v. Morrison, 134 Mass. 189, 190;Garrity v. Higgins, 177 Mass. 414, 58 N.E. 1010;Loveland v. Rand, 200 Mass. 142, 144, 85 N.E. 948;Ryan v. Hickey, 240 Mass. 46, 132 N.E. 718;Commonwealth v. Cero, 264 Mass. 264, 275, 162 N.E. 349;Barry v. Alton Rubber Co., 274 Mass. 18, 174 N.E. 264;Nerbonne v. New England Steamship Co., 288 Mass. 508, 510, 193 N.E. 72;Commonwealth v. DiStasio, 294 Mass. 273, 287, 288, 1 N.E.2d 189. After the denial of one motion, a second motion based on the same grounds need not be entertained. Commonwealth v. Ruisseau, 140 Mass. 363, 5 N.E. 166;Boston Bar Association v. Casey, 227 Mass. 46, 49, 116 N.E. 541;Barry v. Alton Rubber Co., 274 Mass. 18, 174 N.E. 264.

It is true that in equity the propriety of an interlocutory decree from which no appeal was taken is nevertheless open upon appeal from a final decree affected by it. G.L.(Ter.Ed.) c. 214, § 27; Gibbons v. Gibbons, 296 Mass. 89, 4 N.E.2d 1019;Dodge v. Anna Jacques Hospital, 301 Mass. 431, 432, 17 N.E.2d 308;Weiner v. Pictorial Paper Package Corp., Mass., 20 N.E.2d 458;Victor Talking Machine Co. v. George, 3 Cir., 105 F.2d 697. But it does not follow that the judge entering the final decree is bound to review and reconsider every earlier decree entered by himself or another judge. The appeal from the final decree appears to reach farther than the alleged errors of the judge who entered it. Potts v. Village of Haverstraw, 2 Cir., 93 F.2d 506, 509, 510;United States v. Steinberg, 2 Cir., 100 F.2d 124, 125;Weiner v. Pictorial Paper Package Corp., Mass., 20 N.E.2d 458.

A pleading amended after demurrer ordinarily presents a new question to be decided on demurrer without reference to the decision earlier made on demurrer to the pleading before amendment. Calder v. Haynes, 7 Allen 387;Cronan v. Woburn, 185 Mass. 91, 95, 70 N.E. 38;Cole v. Wells, 224 Mass. 504, 512, 113 N.E. 189;Corbett v. Gallagher, 225 Mass. 480, 482, 114 N.E. 751;West v. H. J. Lewis Oyster Co., 99 Conn. 55, 67, 68, 121 A. 462;Darling v. Blazek, 142 Iowa 355, 120 N.W. 961;Lanz v. Schumann, 175 Iowa 542, 545, 154 N.W. 911;Parks v. Monroe, 99 Kan. 368, 371, 161 P. 638;Miles v. Hamilton, 106 Kan. 804, 189 P. 926, 19 A.L.R. 276;Wells v. Dane, 101 Me. 67, 63 A. 324;First State Bank of Mountain Lake v. C. E. Stevens Land Co., 119 Minn. 209, 215, 216, 137 N.W. 1101, 43 L.R.A.,N.S., 1040, Ann.Cas.1914A, 1146; United States Fidelity & Guaranty Co. v. Pullen, 230 Wis. 137, 141, 283 N.W. 462. But a sufficient reason for denying a motion to amend is that the proposed amendment will not materially improve the pleading. Massachusetts Gasoline & Oil Co. v. Go-Gas Co., 267 Mass. 122, 126, 166 N.E. 563. Compare Corbett v. Gallagher, 225 Mass. 480, 482, 114 N.E. 751. Where, as in the present case, the amendment is wholly foreign to the case against the demurrants, and leaves the case stated against them unchanged, it is possible that a judge could overrule the demurrer to the amended bill pro forma without reconsideration of what had been decided on demurrer prior to the amendment, and possibly without affording the demurrants a new right of appeal. That course was adopted by a district court in Meeker v. Lehigh Valley Railroad, 175 F. 320; but an appeal was actually prosecuted and the decision was reversed, the report stating that the amended bill was ‘regarded as containing materially different facts.’ 2 Cir., 183 F. 548, 550. See, also, Calder v. Haynes, 7 Allen 387;Miles v. Hamilton, 106 Kan. 804, 805, 806, 189 P. 926, 19 A.L.R. 276;People v. Opie, 304 Ill. 521, 522, 523, 136 N.E. 752.

Though there is no duty to reconsider a case, an issue, or a question of fact or law, once decided, the power to do so remains in the court until final judgment or decree. Calder v. Haynes, 7 Allen 387;Waucantuck Mills v. Magee Carpet Co., 225 Mass. 31, 33, 113 N.E. 573;Cinamon v. St. Louis Rubber Co., 229 Mass. 33, 37, 118 N.E. 327;Sallinger v. Hughes, 235 Mass. 104, 107, 126 N.E. 278;Goulis v. Judge of Third District Court of Eastern Middlesex, 246 Mass. 1, 8, 140 N.E. 294; Clark v. McNeil, 246 Mass. 250, 256, 257, 140 N.E. 922;Conway v. Kenney, 273 Mass. 19, 23, 172 N.E. 888;Town of Hopkinton v. B. F. Sturtevant Co., 285 Mass. 272, 276, 189 N.E. 107;Bucholz v. Green Bros. Co., 290 Mass. 350, 354, 195 N.E. 318;Nickerson v. Allen, 293 Mass. 136, 138, 199 N.E. 482;Nelson...