Reno v. Cotter

239 Mass. 581 | Mass. | 1921

Crosby, J.

This is a suit in equity filed in the Superior Court on February 11, 1915, in which the plaintiff alleges that certain sums of money are due to him from the defendants; demurrers severally filed by the defendants, alleging among other grounds that the bill is multifarious, were sustained; and a final decree was entered dismissing the bill, from which the plaintiff appealed. The case was before this court on appeal (236 Mass. 556), and it was then held that the demurrers were rightly sustained, and the decree was affirmed with costs. A rescript to that effect was filed on January^, 1921.

On June 1, 1921, the plaintiff filed in the Superior Court a motion to amend by changing the suit in equity into an action at law as to the defendant Cotter, and a similar motion as to the defendant McDonald. These motions were heard by a judge of that court and severally denied on June 22, 1921; thereafter on the same day a final decree was entered dismissing the bill with costs, and the plaintiff appealed.

The record shows that when the case was first heard in the Superior Court on the demurrers, the judge, without deciding them, filed a report to this court of the questions thereby raised; the same judge later made an order sustaining the demurrers and reported the case to this court. That report, among other matters, recites that if either demurrer is sustained on any ground the plaintiff may amend on payment of costs. Afterwards the reports were discharged for failure to enter them in the Supreme Judicial Court. The plaintiff earnestly contends that, as the judge did not decide the demurrers when he filed his first report and the plaintiff later was given leave to amend, he is entitled as of right after rescript to amend, and that he cannot be deprived of that right so given him in the second report. This contention cannot be sustained. In the previous decision it was held that the first report was superseded by the second, and that the latter was discharged rightly. Reno v. Cotter, 236 Mass. 556, at page 559.

The plaintiff contends that, in denying the motions to amend the bill into an action at law, the judge abused his discretion. It is elementary that the decision whether an amendment shall be allowed rests in sound judicial discretion. Lang v. Bunker, 6 Allen, 61. Merchants’ Bank of Newburyport v. Stevenson, 7 Allen, 489, 491. Drew v. Beard, 107 Mass. 64, 76. Tufts v. Waxman, 181 Mass. 120. Fay v. Boston & Worcester Street Railway, 196 Mass. 329, 336. Aronson v. Nurenberg, 218 Mass. 376. Reno v. Cotter, supra.

Although it was said in the first opinion that “The causes of action against the defendant Cotter and that against both defendants seem to be appropriate subjects for several actions at law/5-that statement cannot be construed as an adjudication that a denial of the motions would be an abuse of judicial discretion. In view of the history of the case, including the fact that the motions were filed substantially five months after the filing of the rescript, the judge may have believed that the plaintiff had delayed so long in the prosecution of his demand, that the litigation ought not to be further prolonged. We find nothing on this record to' show an abuse of discretion in denying the motions. If it be assumed that St. 1913, c. 716, § 3, is pertinent, we decline under the circumstances here disclosed to overrule the Superior Court.

Decree affirmed with costs of the appeal.