Sanford v. Soule Piano & Organ Inv. Co.
| Decision Date | 21 June 1895 |
| Citation | 41 N.E. 120,164 Mass. 85 |
| Parties | SANFORD v. SOULE PIANO & ORGAN INV. CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles F. Chamberlayne, for appellant.
F.E Sweet, for appellee Belle Wright.
Louis C. Southard, for appellee Soule Piano & Organ Investment Co.
There is nothing in the first or second grounds of demurrer. The debt need not be reduced to a judgment in order to maintain a bill in equity, like the present, under the statutes which give a remedy in equity to reach and apply in payment of a debt, property of the debtor which cannot be attached or taken on execution at law.
The third ground of demurrer is that it appears by the bill that there is an action at law pending in this commonwealth between the same parties for the same cause of action, and that it is not "just or equitable that the said defendant shall be held to answer both suits concurrently." The bill of complaint alleges that the principal defendant is indebted to the plaintiff in certain sums of money for board and lodging furnished her, etc., and that a suit at law to recover said sums of money has been brought by the plaintiff against the defendant by trustee process in the police court of the city of Brockton, and that the trustee has made answer that there was due from the trustee to the defendant a sum of money less than the plaintiff's claim; whereupon this bill is brought to reach certain other sums which may become payable to the defendant from the trustee upon certain contingencies which may happen in the future. A bill of this nature on a legal cause of action should set out the cause of action as specifically as is required in an action at law. This bill contains no specification whatever of the sums due for board and lodgings, or of how much board or what lodgings were furnished, or when they were furnished. If the demurrer had been put upon this ground, it must have been sustained; but this defect is a matter capable of amendment, and the superior court probably would have permitted the plaintiff to amend, upon terms or without terms, if this objection had been taken. If the two suits were actions at law, and if the pendency of the former action had been pleaded in abatement in the second suit, that suit necessarily would abate, as the suits are both pending in the same jurisdiction. A court of law will not permit a defendant to be vexed at the same time in the same jurisdiction, by the prosecution of two suits for the same cause of action by the same plaintiff. A court of equity will not permit this to be done, but, instead of dismissing the second suit, it usually permits the plaintiff to elect which suit he will proceed with; and, when the plaintiff has brought an action at law, and afterwards a suit in equity, if the...
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