Ansara v. Regan, 276 Mass. 586

276 Mass. 586 | Mass. | 1931

Wait, J.

It has become the practice of our law that the same subject matter shall not be litigated twice between the same parties. When they resort to the courts for the determination of a right, they must abide by the result of the legal proceedings. If, by their agreement after litigation has been entered upon, they put the result in the form of a judgment in the proceeding, they thenceforth are as much bound by the legal effect of the judgment as if it were the outcome which a court would have reached had the issues disclosed by the pleadings been fully tried and decided. In any subsequent dispute between them the judgment binds them. They cannot go behind it with regard to issues within the scope of the pleadings. They must see to it when they agree upon the judgment that issues disclosed by the pleadings intended to be left undecided are excluded from its binding effect.

In the case before us immediately after a sale intended as a foreclosure of a mortgage held by Regan, he brought an action upon the mortgage note against the makers and by his declaration made the issue his right to recover upon the note because he had not received what was due upon it. He set out that, owing to prior encumbrances which must be met from what he had paid, there was nothing received which diminished the amount due him from the makers of the note. They answered a general denial and payment. They did not set out their present contention that what he had paid was not applicable to prior encumbrances, but, instead, after deducting from it the amount due upon this mortgage note, 'wás payable to them as the mortgagors, so that nothing was due from them upon the note. This defence, however, was open to them under their general denial, and, it has been said in Draper v. Mann, 117 Mass. 439, Hood v. Adams, 124 Mass. 481, Muhlig v. Fiske, 131 Mass. 110, 114, Warneke v. Wyczatycki, 269 Mass. 179, was admissible as payment. The real issue made by the pleadings was whether anything remained due to Regan upon the note after the foreclosure sale. The parties agreed upon a compromise — in fact an accord and satisfaction. The makers delivered a rug to Regan, and, through their attorney in the action, agreed to an entry of judgment for Regan for $1, and entry of “judgment satisfied.” By so doing the makers recognized Regan’s claim as good. The issue was settled that in the circumstances something remained due to Regan; that the note had not been extinguished by the happenings attending the foreclosure sale. It is not open to them to litigate that issue anew. Biggio v. Magee, 272 Mass. 185. Long v. MacDougall, 273 Mass. 386.

We need not consider whether in technical law there was here res judicata; whether if all that appeared was a consent judgment in Regan’s favor the plaintiff would be helpless. More does appear. The circumstances attending the action are set out in the plea and leave no doubt that the essential issue here was involved in the' action at law and open to determination therein under the pleadings. There is no doubt that the makers realized that, in truth, there was a deficiency in payment of the note, and by the consent judgment intended so to record. The judgment was intended to be a deficiency judgment. We think the judge right in deciding that it was not open to the plaintiff to litigate the point again, and that the plea in bar, if true, was sufficient; and further, we think the judge who heard the case on the facts was not in error in his finding as to the truth of the allegations of the plea. Nothing in Sawyer v. Woodbury, 7 Gray, 499, compels a different decision, nor do Rosenberg v. Peter, 269 Mass. 32, Farnum v. Brady, 269 Mass. 53, Guild v. Cohen, 269 Mass. 241. Compare Lesberg v. Lesberg, 260 Mass. 216; Aylward v. Tierney, 263 Mass. 572; Beserosky v. Mason, 269 Mass. 325, 328.

Questions of practice are raised by the plaintiff’s motions .to discharge the appeal and remand the record for correction. At the hearing on the merits of the plea original papers in the action at law were used in evidence. They were produced by the clerk of the courts and remained in his hands. They were transmitted by him to the clerk of this court with the record of the appeal and the stenographer’s report of the testimony. This was in accord with the provision of St. 1929, c. 265, § 1, that “Original papers used in the trial in the court below which are needed before the full court of the supreme judicial court shall be transmitted to its clerk to be kept on file by him until the rescript in such case is sent.” Inasmuch as these papers were not put in evidence by certified copies they were not matter for transcription by the stenographer and could be brought before us only in the manner pursued (except, possibly, by agreement of the parties). There is no occasion to remand the record for correction in this regard. The originals are before us.

The record as prepared by the clerk contained a transcript of notes of the evidence taken by Caroline Edmands who certified that as official stenographer for the Commonwealth she reported the case at the trial before the judge who heard the evidence as to the truth of the plea. No specific statement set out that the stenographer appointed was a suitable disinterested person to take the evidence at the request of a party or by direction of the judge, before evidence was offered, under the provisions of G. L. c. 214, § 24, Equity Rule 29 (1926). Inasmuch, however, as a certificate filed by the clerk in connection with the motion for remand shows that such application was made and filed with the papers before evidence was taken, we think an order allowing the motion may be presumed to have been made by the judge and, by inadvertence, failed to be recorded. Counsel has made affidavit that such order was made. In the circumstances, we think an order of remand is not necessary. Without deciding the question of law and without establishing a precedent, we have dealt with the case on the assumption that the evidence is properly before us, as set out in the papers, since the result is unaffected and the parties suffer no prejudice thereby.

Decrees affirmed.