266 Mass. 64 | Mass. | 1929
A judge of the Superior Court ruled that he had no authority to grant a motion, made by five of the six defendants in this equity suit pending in Norfolk County, to transfer 'the suit to Suffolk County, there to be tried with an action at law in which one of the defendants is the sole
By writ, dated July 26, 1927, the defendant Daniel H. Coakley brought an action at law in the Superior Court for the county of Suffolk against Stoneman, seeking to recover damages for breach of several contracts, for an accounting for money received by the defendant as the plaintiff’s attorney, and for money due according to an account annexed. Coakley seasonably filed a claim for jury in the action at law and a motion for jury issues in the equity suit. The judge found that four matters set forth in the bill in equity are common to matters set forth in the declaration in the action at law, and that much of the evidence relating to these would be essentially the same; that to try one cause in Norfolk and the other in Suffolk would be substantially a waste of time and money, and, if it were a matter of discretion he would allow the motion to transfer or order the cases consolidated and tried together in one county. He then ruled that the matter was not one of discretion, but a question of law; that he had no authority to allow the motion or to consolidate the cases and therefore denied the motion.
The authority of the court to consolidate cases for trial is clearly established, Lumiansky v. Tessier, 213 Mass. 182,188; but in the cases where this right has been exercised no question seems to have arisen of transferring a case from a county in which it is properly brought to another against the will of
The defendants, in their motion, have not stated the ground on which it is based. No reason for transferring the suit except that stated by the judge appears. The court has power to prevent a double trial of the same issues between the same parties by the method suggested in Lumiansky v. Tessier, supra, page 188. We know of no case holding that a change of venue may be granted simply because a suit between the same parties involving many of the same issues is pending in another county. There is no statutory authority to transfer the suit to Suffolk County upon the facts disclosed in this case. The provision of G. L. c. 213, § 5, authorizing courts and justices thereof in any county to transact any business of such courts and direct the entry of any order, judgment or decree in an action, suit or proceeding pending in the same court in another county, was not intended to give the court authority to transfer a case for trial against the wishes of a plaintiff who had a right to bring it in the county where it was pending. The judge was right in ruling upon the record and facts found by him that he had no authority to allow the defendants’ motion, and a decree may be entered denying the motion to transfer.
So ordered.