Zeitz v. Nickel

• Decision Date: 11 January 1923
• Citation: 138 N.E. 4,243 Mass. 516
• Parties: ZEITZ et al. v. NICKEL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 516

138 N.E. 4

ZEITZ et al.

v.NICKEL et al.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 11, 1923.

Report from Supreme Judicial Court, Bristol County; John C. Crosby, Judge.

Suit by Barney Zeitz and others against Ernest Albert Nickel and others. Reported by a single justice, after he had ordered issues framed for trial in the superior court. Order affirmed.John W. Cummings, James Little, and John B. Cummings, all of Fall River, for plaintiffs.

William A. Morse and John H. Powers, both of Boston, for defendant Nickel.

RUGG, C. J.

This is a suit in equity brought in the Supreme Judicial Court for Bristol county to enjoin the prosecution of an action at law by the defendant Nickel as plaintiff against the plaintiffs as defendants in the superior court for Dukes county and for other relief. Many of the issues of fact to be tried and determined in that action at law are the same as those to be decided in the present suit. The plaintiffs are residents in the county of Bristol, the defendant Nickel in the county of Dukes and the remaining defendants in the county of Suffolk. The cause of action set out in the declaration in the case pending in the superior court and that described in the present suit both arise out of the same contracts between the present plaintiffs doing business as Mercantile Wrecking Company and Nickel, whereby the latter was to launder and clean at his works at Oak Bluffs goods taken by the former under contract with the United States government from a wrecked steamship lying on a shoal on the island of Martha's Vineyard, payments due Nickel under such contracts being guaranteed by the defendants resident in Suffolk county. All this work by both parties to the contract was to be done in Dukes county, within which are Oak Bluffs and Martha's Vineyard.

The question presented is whether the single justice had power to frame issues in the case at bar to be tried by a jury and order the same tried at the bar of the superior court in Dukes county with the action at law to which reference already has been made.

By G. L. c. 211, § 19:

‘An action, suit or proceeding arising or pending in the county of Dukes or Nantucket, which is cognizable by the Supreme Judicial Court and which is to be heard before one justice, shall be entered, heard, tried and determined at the court held in the county of Bristol, in all respects as if the same court were held in the county of Dukes or Nantucket, as the case may be. * * *’

[1] This section is somewhat broader in its scope than a single regulation of venue. It provides that there shall be no sitting of the...