267 Mass. 13 | Mass. | 1929
This is a suit in equity brought in the Superior Court, and is before us on appeal by the plaintiffs from the denial of a “Petition (or motion) to reopen and review the final decree” and of a “Motion for final decree after rescript from Supreme Judicial Court,” and from the final decree entered after rescript following the decision reported in 264 Mass. 303, where the facts are set forth at length and need not here be recited. The final decree entered was in substantial accord with the rescript from this court.
Both the above motions, in substance, seek a decree that the plaintiffs are entitled to recover interest upon the amounts paid on account of the purchase price of the property in question, from the dates in 1924 when they were paid to April 16, 1926; and that they are to bq relieved from paying interest on their mortgage note given for the balance of the purchase price from its date to April 16, 1926; that they are entitled to recover the amount of taxes and insurance premiums paid on the property, and the income on the property collected by the receiver after deducting proper charges of the receivership, and that such amounts should be credited with “the net profits, if any, which the plaintiffs received from the occupancy of the property to the date of the appointment of the receiver . . . . ” The effect of these motions is to have the sale of the property treated as having occurred on April 16, 1926, when the tender of the deeds conveying
The general rule is that there can be no appeal from a final decree entered substantially in accordance with a rescript from this court. In appropriate instances where such an appeal lies, the only question open is whether the decree properly conforms to the rescript. Attorney General v. New York, New Haven & Hartford Railroad, 201 Mass. 370, 371. Phelps v. Lowell Institution for Savings, 214 Mass. 560, 561. Boston, petitioner, 223 Mass. 36, and cases cited. King v. Connors, 223 Mass. 305. Edgecomb v. Edmonston, 258 Mass. 568, 569, 570. Bourbeau v. Whittaker, 265 Mass. 396, 398. The claims of the plaintiffs set forth in the motions are not based on any new evidence or facts occurring since the entry of the final decree. The questions which' might have been raised by the plaintiffs in the former appeal and were not then argued are deemed to have been waived and cannot now be considered. E. Kronman, Inc. v. Bunn Bros. Inc. 265 Mass. 549, 552, 553, and cases cited. Even if the claims now presented could not have been previously brought before the court, the proper procedure for presenting them would be an amendment to the pleadings alleging the change in the circumstances. The power to grant such amendment exists up to the time of the final decree. Day v. Mills, 213 Mass. 585, 587. In the case at bar there was no application to the court to allow an amendment.
If the plaintiffs’ motion could be treated as an application to amend, it is well settled that the allowance of such an amendment rests in the sound judicial discretion of the judge and is not subject to review. Hannaberry v. Green, 225 Mass. 201, 203. Hall Publishing Co. v. MacLaughlin, 230 Mass. 534, 536. Reed v. Chase, 238 Mass. 83, 92.
Decree affirmed with costs.
