362 Mass. 873 | Mass. | 1972
The plaintiff appeals from a final decree dismissing a bill of complaint. The final decree entered was based upon the defendant’s motion for “Allowance of Final Decree” accompanied by an “Affidavit of Counsel.” The defendant’s motion and the affidavit of counsel alleged that a prior bill of complaint contained “almost identical . . . prayers for relief . . .” and that “[t]he facts . . . have all been alleged . . . either in a [b]ill of [cjomplaint or the contempt petition” between the same parties; it further alleged that both the prior bill of complaint and a contempt petition were “dismissed” upon the defendant’s motions. The judge allowed the present motion after examining the papers in the prior suit and finding that the statements contained “in the supporting affidavit” were fact. The defendant argues, in substance, that its motion to dismiss should be treated as a plea in bar. We treat pleadings according to their nature and substance. See Commonwealth v. Wakelin, 230 Mass. 567, 571; Essex Trust Co. v. Averill, 321 Mass. 68, 70; Employers’ Liab. Assur. Corp. Ltd. v. Traynor, 354 Mass. 763. The defendant argues that its defence of res judicata raised by its motion should be sustained. We disagree. “Res judicata is an affirmative defence.” Hacker v. Beck, 325 Mass. 594, 598. The burden is on the party claiming res judicata by reason of a prior adjudication to allege enough facts in
So ordered.
