Reno v. Cotter
| Decision Date | 03 January 1921 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CONRAD RENO v. JAMES E. COTTER & others. |
September 23, 1920.
Present: RUGG, C.
J., DE COURCY CROSBY, CARROLL, & JENNEY, JJ.
Equity Pleading and Practice, Report, Appeal, Decree, Bill, Amendment. Superior Court. Jurisdiction. Equity Jurisdiction, Accounting, To reach and apply assets not attachable at law.
Where, after having attempted to report a suit in equity upon the bill and a demurrer without making any ruling as to the demurrer, a judge of the
Superior Court files a second report in which he states that he "made an order sustaining" the demurrer and reports that ruling to this court for determination, the second report must be taken to have revoked and superseded the first, although it did not expressly so state.
Upon an appeal without a report of evidence, from an order by a judge of the Superior Court, which denied a motion of the plaintiff in a suit in equity to discharge a report to this court, filed more than one and one half years before by another judge, of a ruling sustaining a demurrer to the original bill and also denied a motion by the plaintiff to amend his bill and allowed motions of the defendant to discharge the report and that judgment be entered for the defendant, the order, so far as it involves a finding of fact, must stand. It seems, that a decision in writing, signed by a judge of the Superior
Court, stating that he allowed a motion of the defendant in a suit in equity that a report to this court by another judge of a ruling sustaining a demurrer to the bill be discharged, may be treated as an interlocutory decree.
The failure of the plaintiff in a suit in equity for a year and one half to enter in this court a report by a judge of the Superior Court of a ruling sustaining a. demurrer to the bill is abundant reason for allowing a motion by the defendant that the report be discharged.
Upon an appeal in a suit in equity from a final decree which, besides dismissing the bill, included several matters which already had been the subject of interlocutory orders and decrees, the correctness of the disposition made of such interlocutory matters is open for consideration.
A judge of the Superior Court who heard a demurrer to a bill in equity filed a report to this court in which he stated that he sustained the demurrer, but no formal decree to that effect was entered. A motion by the defendant that the report be discharged for failure of the plaintiff to enter it in this court was allowed a year and a half later.
Subsequently a motion by the defendant for the entry of a formal decree sustaining the demurrer on the ground that the matter already had been decided by the first judge was allowed by a second judge as of the date of the filing of the report by the first judge. Upon an appeal from such decree, where the record did not include a report of evidence, it was held, that
(1) It was not essential that the motion be decided by the same judge who filed the report;
(2) Although the report was discharged, it was proper to resort to it for any rightful purpose;
(3) The statement in the report by the first judge that he had made an order sustaining the demurrer was a sufficient foundation for the subsequent entry, nunc pro tunc, upon the order of the second judge, of an interlocutory decree to that effect;
(4) So far as the decree included a recital of facts, it must stand, no evidence being reported;
(5) So far as the decree included a ruling of law, it was within the jurisdiction and power of the court and was warranted.
Where a judge of the Superior Court files a report in a suit in equity reciting that he had made an order sustaining a demurrer to the bill, but it appears that he had not formally entered such an order, and later, by order of another judge, an interlocutory decree sustaining the demurrer is entered as of the date of the filing of the report by the first judge, a motion of the plaintiff that the report be discharged on the ground that there was no ground for the report because when it was filed the judge had not made an order sustaining the demurrer, properly may be denied.
The allegations of a bill in equity by an attorney at law against two other attorneys and a third defendant were that the plaintiff and one defendant entered into a business arrangement, not a partnership agreement, for the practice of law, whereby the plaintiff was to receive a percentage of fees received by that defendant, and there were recited a number of specific matters of litigation which were subject to the arrangement. There also were allegations that, without a definite arrangement as to compensation, the plaintiff rendered valuable services to both the defendants who were attorneys at law in connection with other litigation for the third defendant; and there were paragraphs appropriate to a bill to reach and apply to the payment of sums alleged to be due to the plaintiff property of the defendant attorneys in the hands of their client. Held, that the bill was founded upon distinct and separate causes of action which had no connection with each other, and was multifarious; and that demurrers thereto on that ground should be sustained.
The disposition of a motion to amend a bill in equity rests in the sound judicial discretion of the court.
The disposition of a motion of the plaintiff, in the suit above described, to strike out the client as a party defendant and to divide the bill, leaving in only allegations applicable to a joint claim against the two defendants who were attorneys at law, lies in the sound judicial discretion of the court.
The proper office of a supplemental bill in equity is to support a ground of suit, existing when the original bill was filed, by facts occurring since the filing of the original bill and coming to the knowledge of the plaintiff subsequent thereto.
BILL IN EQUITY, filed in the Superior Court on February 11, 1915, against James E. Cotter, James W. McDonald and William J. Lowrie for accountings by the defendant Cotter and by the defendant McDonald for sums alleged to be due from each of them to the plaintiff by reason of payments made to them for professional services rendered by them and the plaintiff in matters described in the opinion, and to reach and apply, in payment of amounts found due on such accountings, certain alleged rights of the defendants Cotter and McDonald arising out of litigation carried on by them for the benefit of the defendant Lowrie. The allegations of the bill are more particularly described in the opinion.
The suit was heard in successive stages in the Superior Court by King, Fox, Wait, J. F. Brown, N. P. Brown, & Lawton, JJ., respectively. The proceedings are described in the opinion. From a final decree ordering, among other things, that the bill be dismissed, the plaintiff appealed.
The case was submitted on briefs. C. Reno, pro se.
J. P. Fagan & J.
W. McDonald, for the defendants Cotter and McDonald.
This Suit in equity was filed on February 11, 1915. The record is confused and it is necessary to state it in some detail. The defendants Cotter and McDonald, who hereafter will be called the defendants, filed separate demurrers. These were heard and on November 9, 1915, without deciding the demurrers, the judge filed what is in form a report to this court of the questions thereby raised. On March 4, 1916, another report was filed by the same judge, wherein it was stated that he "made an order sustaining the demurrers," and then reported the correctness of his rulings upon certain stipulations. The first report did not conform to R.L.c. 159 Section 27, as to reporting interlocutory matters in equity. Doubt well may have arisen in the mind of the judge as to his power to report a demurrer in equity without first deciding it, and hence the second report was made, which on its face showed a decision upon the demurrers. It must be assumed that the first report was in effect superseded by the second, which is more full and conforms to R.L.c. 159, Section 27. Two reports cannot be made rightly of the same question and both be outstanding at the same time. By making the second report the first was revoked even though not expressly so stated. On July 24, 1917, the plaintiff filed a motion to amend his complaint, and on July 30 a motion to discharge the reports. On September 11, 1917, more than one and one half years after the filing of the last report, each defendant filed a motion to discharge the reports for failure seasonably to enter them in the Supreme Judicial Court and for an order affirming the order sustaining the demurrers and for judgment thereon. These three motions were heard together by another judge. In February, 1918, his decision was filed. In it, after denying the plaintiff's motions and after making a finding that no action had been taken looking to the entry of the report in this court, be allowed the defendants' motions that the report be discharged and that judgment be entered for the defendants upon the order sustaining the demurrers. So far as that decision involved a finding of fact, it must stand as final on familiar principles, since no evidence is reported.
No formal decree was entered by this judge pursuant to his decision. He filed however, a signed statement or decision to the effect among other matters that the defendants' motions that the report be discharged were allowed. There is authority to the effect that an order of this nature is equivalent to an interlocutory decree. Nelson Theatre Co. v. Nelson, 216 Mass. 30 , and cases collected at page 33. In connection with the entry of the final decree expressly discharging the report, the report is deprived of any efficacy to bring the case he...
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