Steeves v. Bowen

211 Mass. 116 | Mass. | 1912

Morton, J.

The principle on which this case rests is stated in Kyle v. Reynolds, ante, 110, and need not be restated here. The only question is whether the interlocutory decree and what was done under and pursuant to it constituted such a material change in the position of the defendants and gave them such a right to have the case proceed to a final determination as to render it inequitable to permit the plaintiff to dismiss his bill on payment of costs. We think that it did give them such right and that the dismissal of the bill as of right was wrong. The defendants held the certificates subject to a lien which they claimed to have upon them for what was due to them. The defendants in aid of their motion to have the attachments discharged brought the securities into court and offered to deposit them therein. Thereupon the plaintiff offered to agree to the dissolution of the attachments and injunctions if the securities were turned over to him, and to give a bond with surety conditioned to pay the amount of any indebtedness for which it should be determined in said action that the defendants had a lien on the securities. The defendants accepted this offer and a bond satisfactory to them and conditioned also to pay what might be found due the defendants at law or in equity in respect of any transactions between certain specified dates was executed by the plaintiff with surety, and an interlocutory decree was entered by consent that upon the delivery to the defendants of the bond the securities should be delivered to the plaintiff and all injunctions dissolved and all attachments on personal property discharged and those on real estate reduced to $500 and the case referred to a master to hear the parties and find the facts. No master was appointed, but the other things specified in the decree were performed.

What was done must be taken to have been done pursuant to the interlocutory decree thus entered. The fact that the decree was entered by consent and embodied a prearrangement does not in any way alter the effect to be given to it. We think that the effect of the decree and of what was done pursuant to it was to put the defendants in a position where the dismissal of the suit operated materially to, their prejudice and did more “than to make the path of the law a little more onerous,” as the presiding justice held. Instead of retaining possession of the securities with a lien on them for what if anything was due them, the defendants surrendered them to the plaintiff and received therefor a bond one of the conditions of which was that the plaintiff should pay the defendants the amount, if any, up to $5,000, for which in any final decree it should appear that the defendants had a valid lien on the securities. By the dismissal of the bill the defendants have lost the benefit of this condition and the right to have the amount due them determined in the pending suit as the bond in effect-provided. That is a substantial right of which they cannot and should not be deprived against their objection. It also would seem that their position was materially changed to their prejudice when" they gave up the securities of which they had possession and on which they claimed a lien and received therefor a right of action on a bond. The result is that the decree dismissing the bill must be reversed.

So ordered.