295 Mass. 139 | Mass. | 1936
The defendant appeals from a final decree permanently enjoining him from (1) prosecuting a certain action in the Superior Court against the plaintiff on behalf of one Cora Hunnewell Gates, (2) prosecuting another certain action in the Superior Court against the plaintiff on behalf of the defendant himself, (3) bringing, aiding or
The plaintiff, who happens to be an attorney at law, held a mortgage upon real estate owned by said Gates, an elderly woman. Although the plaintiff assigned the mortgage in 1930 to The First National Bank of Boston, on some ground he obtained a final decree on September 29, 1933, enjoining said Gates and the defendant as her attorney from interfering with the plaintiff in his possession and operation of said real estate, and awarding the plaintiff damages exceeding $3,500. Upon the execution issued upon this decree, the sheriff on November 8, 1933, levied upon the equity of redemption of said Gates in said real estate, and on January 3, 1934, sold it on execution sale to one Chait.
In the meantime, on November 21, 1933, the defendant, who is not an attorney at law, but who was acting as attorney for said Gates under a written power of attorney from her, brought an action in the Superior Court against the plaintiff and others, for fraud and conspiracy in depriving said Gates of her equity of redemption in said real estate. A demurrer was sustained, and judgment was entered for the defendants in that case, among whom was the present plaintiff, on October 1, 1934. On March 11, 1935, the defendant, as attorney for said Gates, brought an action against the plaintiff to recover $10,000 alleged to be due as the consideration of the release of the interest of Gates in said real estate and of her claim against the plaintiff for alleged fraud. A demurrer was sustained, judgment was entered in favor of the present plaintiff on April 18, 1935, and a petition to vacate the judgment was dismissed on June 17, 1935. On June 5, 1935, the defendant, acting as attorney for said Gates, brought another action of contract against the plaintiff, to recover $10,000 as the alleged consideration for the execution and delivery by said Gates of certain papers. On July 2, 1935, the writ was abated.
On July 18, 1935, after the bringing of the present bill, the defendant, acting as attorney for said Gates, brought
When it became apparent, in September, 1934, that the present plaintiff would prevail in the first action for fraud and conspiracy, the defendant began to threaten to get the plaintiff into trouble with the income tax division of the Federal internal revenue department unless the plaintiff would pay the defendant $10,000. The plaintiff pretended to accede to the demand, and the defendant came to his office to receive payment. The defendant signed a paper, agreeing in consideration of $10,000 to protect the plaintiff against all demands for income taxes. Then police officers who had been concealed in the office arrested the defendant. He was indicted, but on his trial was acquitted by the jury. On December 20, 1934, he brought an action against the present plaintiff for false arrest. Two successive demurrers were sustained, and on June 5, 1935, the present defendant was refused permission to amend his declaration. It does not appear that this action went to formal judgment. But on June 7, 1935, the defendant brought a new action of tort against the plaintiff upon the same cause of action, and this is the action referred to in the second paragraph of the final decree.
There is no allegation and no finding that the plaintiff earns his living by practising law, or that the defendant is unlawfully in competition with him. Although the bill
The next question is, whether the plaintiff may maintain this bill as a bill' of peace to prevent repeated actions at law upon the claim for false arrest. The earlier action was ripe for judgment against the present defendant on June
The equitable relief given was properly extended to restraining the defendant from prosecuting the action brought by him on behalf of Gates. Of course the plaintiff can wait until that action comes on for trial, and then ask the trial court not to permit the defendant to conduct the case. Since the repeal of G. L. (Ter. Ed.) c. 221, § 49, by St. 1935, c. 346, § 3, the defendant is without even color of right to do so. Opinion of the Justices, 289 Mass. 607. But that is not an adequate remedy, for the plaintiff is entitled to complete and immediate freedom from vexation by the
As modified, the final decree is
Affirmed.