Quincy Sav. Bank v. Tansey

• Decision Date: 01 July 1886
• Parties: QUINCY SAV. BANK and others TANSEY v. TANSEY and others. TANSEY v. MCDONNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 220

8 N.E. 49

QUINCY SAV. BANK and others TANSEY v. TANSEY and others. TANSEY v. MCDONNELL.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1886

COUNSEL

E.N. Hill and Frederic Cunningham, for James Tansey and others.

John L Eldridge, for Patrick McDonnell.

OPINION

FIELD J.

We are of the opinion that these suits cannot properly be determined upon this reservation. It may be that the second bill should be dismissed, if the first is considered on its merits, but we are not now required to decide this. The pendency of the first suit has been pleaded in the answer to the second bill in accordance with chancery rule 13, 136 Mass. 605. A plea is usually set down for argument, and is allowed or overruled and if overruled, the defendant must answer; if allowed, the plaintiff may traverse the plea, although it has been said that there is a different practice when the plea is of another suit for the same matter, pending in equity. Story, Eq.Pl. §§ 743, 744. But a plea may be averred to stand for an answer, and, under our practice, a plea, if inserted in an answer, must be taken to be a part of it, and true for all the purposes of the case, if the cause is set down by the plaintiff for hearing upon bill and answer.

The two cases have been reserved together, each upon bill and answer, apparently under a misapprehension that the second bill can be considered as a cross-bill, and that all the allegations of the same parties in both suits can be taken together, for the purpose of ascertaining what are the facts which the pleadings disclose. The two suits are between the same persons, relate to the same subject-matter, and the same controversy; but in the second suit the parties to the first are reversed, and the second suit is pending in the court of Norfolk, while the first is pending in the court of Suffolk. Whether a cross-bill can be filed in another county than that in which the original bill is pending may well be doubted. See Story, Eq.Pl. § 400; Adams, Eq. 409 et seq. The second bill is certainly not a cross-bill in form. It does not recite the proceedings in the first bill, or refer to that bill, and perhaps it may be said that the second bill is not in substance strictly a cross -bill, although in the nature of a cross-bill; but it is not necessary now to decide this. In a hearing on bill and answer all facts well alleged in the answer must be taken to be true; and, under our rules, (chancery rule 28, 136 Mass. 608,) "all facts well alleged in the bill, other than for discovery only, which are not denied or put in issue by the answer, shall be deemed to be admitted." In hearing these two causes together, on bill and answer, whether the second bill is considered a cross-bill or not, as neither bill refers to the other, each cause must be considered separately; and the answers in the first suit cannot be supplemented by the allegations contained in the second bill, nor can the first bill be supplemented by the allegations contained in the answer to the second.

As the controversy is between the same parties, upon the same subject-matter, and for substantially the same purpose, namely, on the one side to avoid a sale of real property, and on the other side to confirm it, the causes ought to be determined upon the same facts. But the facts in the two suits, if determined upon bill and answer, are not the same.

As an illustration of the difference between the two suits...