294 Mass. 288 | Mass. | 1936
These are two bills in equity, in the first of which the plaintiff sought to recover as a stockholder
The cases were tried together before a master and were then heard on the master’s report before a judge of the Superior Court who entered interlocutory decrees overruling the defendants’ exceptions to the master’s report and confirming the report. The defendants appealed from these interlocutory decrees.
The judge filed a “Statement of Findings, Rulings and Order for Final Decrees.’’ He therein ruled that the plaintiff might maintain her bills and was entitled to such measure of relief as they afforded, but suggested that, in view of the master’s findings, more' complete and satisfactory relief might be available to the plaintiff if she amended her bills or either of them and sought not only the sums alleged to be due her intestate but also property of which the master found her intestate had been defrauded in the organization of a corporation and the transfer of assets to it. Accordingly the order entered provided that unless the bills were amended within sixty days a final decree should be entered in the first case requiring the defendant Lavery to pay to the corporation within some reasonable time the sum of $77,023.87 with interest, and that a final decree should be entered in the second case requiring the defendant Lavery tó pay the plaintiff administratrix within a reasonable time the sum of $3,180.75 and also requiring the delivery to her of a single share of stock standing in the name of another defendant.
The plaintiff within the time stated in the order for final decrees filed a motion in the case which she had brought as administratrix asking that she be permitted to amend the bill by making herself as an individual a party plaintiff and by substituting for the bill originally filed an amended bill of complaint filed with the motion. In the case brought by the plaintiff as an individual she filed a motion for
The plaintiff thereupon filed motions to strike out the defendants’ answers to the amended bills and motions to dismiss the defendants’ plea and demurrer. The cases then came again before the first judge "upon the demurrers and answers so filed and upon the plaintiff’s motions to strike out such demurrers and answers and for final decrees.”
The judge, acting under the authority of the second sentence of § 111 of G. L. (Ter. Ed.) c. 231, here reports for the determination of this court two matters: first, his action in denying the plaintiff’s motions to strike out the answers and demurrer filed by the defendants, and second, the question whether the defendants are entitled to a further hearing on the facts. The report states that he was in doubt whether he had the power or authority to strike out the demurrer and answers and to enter final decrees and that "accordingly” he denied the motions. The report further states: “While I am myself satisfied that the issues covered by the amended bills have been fully heard by the master, it does not appear that these bills were allowed to be filed by reason of any ascertainment of that fact by the court or for the purpose of making the allegations of the bills conform to the facts found by the master or of affording the relief to which the plaintiff in the
From the report it is apparent that the judge denied the plaintiff’s motions to strike out pleadings filed by the defendants to the plaintiff’s amended bills solely because he doubted his power and authority to allow them. His doubt was due to the fact that since the time when he had heard the cases they had come before a second judge who, in allowing the plaintiff’s motions to amend, granted leave to the defendants to file pleadings thereto.
The cases when originally before the first judge were heard not merely on interlocutory matters but for the determination of the ultimate step to be taken by the Superior Court on all bills in equity, that is, the entry of proper final decrees. With that purpose he considered the cases and reached in his mind and expressed in the order for final decrees which he filed, his conclusions. For one thing he -found that the plaintiff was entitled to maintain the bills as they then read and was entitled to the limited relief which the allegations and prayers of the bills then permitted. But he also reached and expressed in his order a further conclusion, namely, that a fact found by the master might entitle the plaintiff to further relief if the bills should be so amended as to include such relief. The fact referred to was fraud by the defendant Lavery which was perpetrated on the plaintiff’s intestate in the organization of the corporation and the transfer to it of partnership assets.
The various proceedings on which hearings may be had in the progress of a bill in equity from its filing to the entry of a final decree frequently are heard by more than one judge, due to the changing assignments of judges from one court or one county to another and to other reasons. All the judges have equal power, but the orderly administration of justice requires that a judge in acting in a case shall not ignore duly considered preceding acts by other judges in the same case. Second National Bank of Malden v. Leary, 284 Mass. 321. Barringer v. Northridge, 266 Mass. 315. It is not here to be assumed, and there is in the record nothing to indicate, that the second judge intended to do or did anything more than permit an amendment of the
It appears in the report that the amended bills were allowed upon the agreement of the parties. No such agreement appears in the orders made by the second judge allowing the amendments. The order made on the motion to amend in the case which the plaintiff brought as an individual states: “allowed . . . defendants not objecting.” No such statement appears in the order made in the other case. The record of the proceedings before either judge does not disclose evidence of an agreement of counsel. But assuming that there was evidence of such an agreement presented to the first judge at the time of the second hearing before him it does not appear that the agreement went any further than to permit pleadings to matters in the amended bills which the defendants might show went beyond the allegations of the fraud in the matter of the organization of the corporation and the transfer to it of assets of the plaintiff’s intestate. In any event an agreement of counsel as to pleadings would not prevent the first judge, when the cases again came before him, in the exercise of his discretion striking them out if he were otherwise justified in so doing. Murray v. Rossmeisl, 284 Mass. 263, 267.
The action of the second judge was on an interlocutory matter arising out of the action of the first judge in passing upon the matter of the entry of a final decree. There is nothing in the record to warrant the assumption that the second judge in entering his orders allowing the amendments was doing anything more than what the first judge suggested.
As to the first matter here reported the first judge when the cases again came before him had authority to deal with them on the theory that the bills had been amended only to the limited extent he had permitted. Having found that the issues covered by the amended bills had been fully heard and determined, the first judge had the right to strike out the pleadings filed by the defendants which were not necessary for the proper protection of the defendants. The authority of a court to eliminate irrelevant pleadings is not limited to the authority of Rule 24 of the Superior Court (1932) which deals only with redundant, impertinent or scandalous pleadings. The power to strike out pleadings irrelevant to an issue before the court in order that a fair trial may be had or that justice be done existed before the adoption of that rule, Gardner v. Webber, 17 Pick. 407, Chaves v. Weeks, 242 Mass. 156, Des Brisay v. Foss, 264 Mass. 102, Calnan v. Guaranty Security Corp. 271 Mass. 533, and still exists.
As to the second question reported, that is, whether the defendants are entitled to a further hearing on the facts, it is plain that they are not so entitled. The first judge has found that “the issues covered by the amended bills have been fully heard by the master” and that “the facts have been fully ascertained in respect of the matters alleged in the amended bills.” No party is entitled to more than one full trial on the merits of a case.
The plaintiff asks that this court direct the entry in each case of a final decree in her favor. The case is reported under
The judge has found that “the facts have been fully ascertained in respect of the matters alleged in the amended bills and that upon proper allegations being made, full and adequate relief may be afforded to the plaintiff without the further delay and expense necessarily involved in a second reference.” An examination of the master’s findings and amended bills satisfies us that this finding was warranted. The allegations of the amended bills are adequate to permit the giving of such relief. The judge denied the plaintiff’s motions to strike out the defendants’ amended pleadings because of doubt as to his authority to do otherwise. We here hold that he had authority to strike out the pleadings as filed.
The cases are remanded to the Superior Court for further proceedings, not inconsistent with what is said in this opinion, disposing of the plaintiff’s motions to strike out the defendants’ amended pleadings and entering final decrees.
Ordered accordingly.