Capaccio v. Merrill, 222 Mass. 308

222 Mass. 308 | Mass. | 1915

Loring, J.

In this action the defendant Burleigh set up in bar the fact that judgment had been rendered in his favor in a former case between the same parties, based upon the same cause of action. From an inspection of the record in the former case it appears that the earlier judgment in favor of the defendant was rendered on a demurrer based upon the ground that the earlier declaration was defective and that that defect is cured in the declaration in the present action.

In such a case the former action is not a bar. It was so held in Wilbur v. Gilmore, 21 Pick. 250. To the same effect see Foote v. Gibbs, 1 Gray, 412, 413. And that is established in other jurisdictions. See Wiggins Ferry Co. v. Ohio & Mississippi Railway, 142 U. S. 396; Detrick v. Sharrar, 95 Penn. St. 521; Porter v. Kingsbury, 77 N. Y. 164; Docter v. Furch, 76 Wis. 153; Thomas v. Bland, 91 Ky. 1; Swanson v. Great Northern Railway, 73 Minn. 103; Rodman v. Michigan Central Railroad, 59 Mich. 395; Moore v. Dunn, 41 Ohio St. 62; Terry v. Hammonds, 47 Cal. 32; Terre Haute & Indianapolis Railroad v. State, 159 Ind. 438; Papworth v. Fitzgerald, 111 Ga. 54; Wells v. Moore, 49 Mo. 229; Alabama & Vicksburg Railway v. McCerren, 75 Miss. 687; Duke v. Postal Telegraph Cable Co. 71 S. C. 95; State v. Roth, 47 Ark. 222; Florida Southern Railway v. Brown, 23 Fla. 104; State v. Cornell, 52 Neb. 25; O’Hara v. Parker, 27 Ore. 156. We know of no case to the contrary.

The opposite result is reached (first) when the demurrer in the earlier action is based on the merits; see Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 205; Yates v. Utica Bank, 206 U. S. 181, 183; Northern Pacific Railway v. Slaght, 205 U. S. 122, 130; and (second) when leave to amend is given in the earlier case and the plaintiff refuses to do so. See Correia v. Supreme Lodge Portuguese Fraternity, 218 Mass. 305.

• To avoid misunderstanding it may be added that the rule in Foye v. Patch, 132 Mass. 105 (as to which see Homes v. Aery, 12 Mass. 134, 137; Thatcher v. Gammon, 12 Mass. 268, 269, 270; Loring v. Mansfield, 17 Mass. 394, 396; Homer v. Fish, 1 Pick. 435, 439; Fuller v. Shattuck, 13 Gray, 70, 71; Flint v. Bodge, 10 Allen, 128, 130; Bassett v. Connecticut River Railroad, 150 Mass. 178; Clare v. New York & New England Railroad, 172 Mass. 211; Cotter v. Boston & Northern Street Railway, 190 Mass. 302), does not apply in cases like that now before us.

The defendant has argued a question not raised by the bill of exceptions, but one which will be raised when the question is reached of entering judgment on the verdict rendered in this "case. The declaration in the present case originally consisted of three counts. To this declaration and to each count of it this defendant demurred, and his demurrer was sustained. When the court sustained that demurrer the plaintiff was given leave to amend her declaration. Pursuant to that leave the plaintiff amended the second and third counts but did not amend the first count of the declaration. Then the defendant demurred again “to the first, second and third counts of said amended declaration,” and this demurrer was overruled. After this demurrer had been overruled the parties went to trial upon issues raised by an answer. At the trial the presiding judge required the plaintiff to elect upon which count she would go to the jury, and she elected to go to the jury upon the first count. The jury rendered a verdict in favor of the plaintiff on that count. The defendant now contends that inasmuch as the demurrer to the original declaration so far as the first count was concerned was sustained, the verdict was rendered on a count which was no longer in existence at the time of the trial.

That contention cannot be sustained. When the first demurrer to the original declaration was sustained and the plaintiff amended the second and third counts only, the defendant on motion could have had judgment entered in his favor on the first count. But this was waived by him when he demurred a second time to the first count and went to trial on all three counts.

The first count is sufficient. There is no difficulty in entering judgment on the verdict which has been rendered in favor of the plaintiff on that count.

The entry must be

Exceptions overruled.