Peterson v. Hopson

• Citation: 306 Mass. 597,29 N.E.2d 140
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 17 September 1940
• Parties: THOMAS H. PETERSON v. HOWARD C. HOPSON & others.

306 Mass. 597

29 N.E.2d 140

THOMAS H. PETERSON v. HOWARD C. HOPSON & others.

Supreme Judicial Court of Massachusetts, Middlesex.

September 17, 1940

November 17, 1939.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Equity Pleading and Practice, Rehearing, Report, Demurrer, Bill. Jurisdiction Power of one judge respecting interlocutory action by another judge. Superior Court, Jurisdiction. Supreme Judicial Court Jurisdiction. Trust, Shareholder's bill. Equity Jurisdiction, Fiduciary relation, Shareholder's bill. After a demurrer by one of the defendants to a bill in equity in the

Superior Court had been overruled, a motion by that defendant for a report thereof had been denied and an amendment of the bill not affecting the case stated therein against that defendant had been allowed, it was within the power of another judge of that court to consider and overrule a demurrer by that defendant to the amended bill raising the same questions of law as the first demurrer and thereupon to report those questions to this court.

Discussion by LUMMUS, J., of the power of a judge to vacate or modify previous interlocutory action by another judge of the same court.

Allegations in a bill in equity by a holder of a certificate of beneficial interest in a trust, setting forth a series of instances wherein two defendants having a fiduciary relation to the trust profited at its expense with the assistance of other defendants, were not too vague and indefinite.

Upon a report of the overruling of a demurrer to a bill in equity, this court had the discretionary power to postpone consideration of the question of the sufficiency of the allegations of the bill in certain respects until the facts should have been established, and took that course without prejudice to the subsequent presentation of that question.

A bill in equity seeking relief against alleged improper profit making by two of the defendants, in breach of a fiduciary duty owed by them with the assistance of other defendants, was not multifarious in setting forth a series of different instances of such conduct, the assisting defendants not being the same in all instances.

A holder of preferred shares of beneficial interest in a trust, entitled to receive cumulative dividends and a specified sum per share in liquidation in priority to payments to the holders of other classes of shares, could maintain a suit in equity for relief against improper profit making by the defendants at the expense of the trust even if the remaining assets thereof were then sufficient to afford the plaintiff his rights as a preferred shareholder if liquidation should then occur and even if he became a shareholder after the alleged wrongdoing took place.

BILL IN EQUITY, filed in the Superior Court on January 7, 1939, and afterwards amended.

The suit was reported by Greenhalge, J.

F. P. Garland, (H.

Guild with him,) for the defendants Cheney and others.

R. G. Dodge, for the defendants Greene and another. Lee M. Friedman, for the defendant Furber.

R. S. Warner, (T.

D. Lavelle with him,) for the plaintiff.

LUMMUS, J. 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, Section 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 Hopson and Mange, 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 Mange 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, Section 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, 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. Hayes v. Hurley, 292 Mass. 109 , 111, 112. Castle v. Madison, 113 Wis. 346, 350. 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. Robbins v. Brockton Street Railway, 180 Mass. 51 . Blackburn v. Boston & Northern Street Railway, 201 Mass. 186 , 189. Phillips v. Director General of Railroads, 251 Mass. 263 , 268. Commonwealth v. Clifford, 254 Mass. 390 , 393. Blankenburg v. Commonwealth, 260 Mass. 369 , 376. Barnes v. Springfield, 268 Mass. 497, 502. Second National Bank of Malden v. Leary, 284 Mass. 321 , 324. Long v. George, 296 Mass. 574 , 579, 580. Arabia v. John Hancock Mutual Life Ins. Co. 301 Mass. 397 , 400-401. Conboy v. First National Bank of Jersey City, 203 U.S. 141, 145. Wayne United Gas Co. v. Owens-Illinois Glass Co. 300 U.S. 131, 137. 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. Boston Bar Association v. Casey, 204 Mass. 331, 336. Beach & Clarridge Co. v. American Steam Gauge &

Valve Manuf. Co. 208 Mass. 121 , 132. Taylor v. Pierce Brothers, Ltd. 220 Mass. 254. Rubenstein v. Lottow, 223 Mass. 227 , 234. Clark v. New England Telephone & Telegraph Co. 231 Mass. 546 , 548. Pizer v. Hunt, 253 Mass. 321 , 333. Massachusetts Gasoline & Oil Co. v. Go-Gas Co. 267 Mass. 122 , 129. Lunn & Sweet Co. v. Wolfman, 268 Mass. 345 , 349. Cann v. Barry, 298 Mass. 186 . After a decision of this court, a party has no right to a rehearing. Powers v. Sturtevant, 200 Mass. 519 . 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. Menici v. Orton Crane & Shovel Co. 285 Mass. 499 , 502. Nerbonne v. New England Steamship Co. 288 Mass. 508 , 510. Sullivan v. Boston Bar Association, 170 Mass. 504 . 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 . Loveland v. Rand, 200 Mass. 142 , 144. Ryan v. Hickey, 240 Mass. 46 . Commonwealth v. Cero, 264 Mass. 264 , 275. Barry v. Alton Rubber Co. 274 Mass. 18 . Nerbonne v. New England Steamship Co. 288 Mass. 508 , 510. Commonwealth v. DiStasio, 294 Mass. 273 , 287, 288. After the denial of one motion, a second motion based on the same grounds need not be entertained. Commonwealth v. Ruisseau, 140 Mass. 363 . Boston Bar Association v. Casey, 227 Mass. 46 , 49. Barry v. Alton Rubber Co. 274 Mass. 18 .

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, Section 27. Gibbons v. Gibbons, 296 Mass. 89 . Dodge v. Anna Jaques Hospital, 301 Mass. 431 , 432. Weiner v. Pictorial Paper Package Corp. 303 Mass. 123 , 127-128. Victor Talking Machine Co. v. George, 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. Haverstraw, 93 F.2d 506, 509, 510. United States v. Steinberg, 100 F.2d 124, 125. Weiner v. Pictorial Paper Package Corp. 303 Mass. 123 , 127-128.

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. Cole v. Wells, 224 Mass. 504 , 512. Corbett v. Gallagher, 225 Mass. 480 , 482. West v. H. J. Lewis Oyster Co. 99 Conn. 55, 67, 68. Darling v. Blazek, 142 Iowa, 355. Lanz v. Schumann, 175 Iowa, 542, 545. Parks v. Monroe, 99 Kans. 368, 371. Miles v. Hamilton, 106 Kans. 804. Wells v. Dane, 101 Maine, 67. First State Bank of Mountain Lake v. C. E. Stevens Land Co. 119 Minn. 209, 215, 216. United States Fidelity & Guaranty Co. v. Pullen, 230 Wis. 137, 141. 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...