Zeitz v. Nickel

Jan 8, 1923
Reporters:
Before:
Rugg
Rugg, C.J.

This is a suit in equity brought in the Supreme Judicial Court for Bristol County to enjoin the prosecution of an action at law by the defendant Nickel as plaintiff against the plaintiffs as defendants in the Superior Court for Dukes County *518and for other relief. Many of the issues of fact to be tried and determined in that action at law are the same as those to be decided in the ‍‌​‌​‌​‌‌‌​​‌​‌​‌​​‌‌​​​​​​​​‌​‌‌‌​‌​‌​​‌‌​​‌​​‌​‌​​‌​​​​​​‌​‌​​​‌​​‌‌‌‌​​‌​​​​‌​​​​​‌‌‌​‌‌​‌‌​​​‍present suit. The plaintiffs are residents in the county of Bristol, the defendant Nickel in the county of Dukes and the remaining defendants in the county of Suffolk. The cause of action set out in the declaration in the case pending in the Superior Court and that described in the present suit both arise out of the same contracts between the present plaintiffs doing business as Mercantile Wrecking Company and Nickel, whereby the latter was to launder and clean at his works at Oak Bluffs goods taken by the former under contract with the United States Government from a wrecked steamship lying on a shoal on the Island of Martha’s Vineyard, payments due Nickel under such contracts being guaranteed by the defendants resident in Suffolk County. All this work by both parties to the contract was to be done in Dukes County, ‍‌​‌​‌​‌‌‌​​‌​‌​‌​​‌‌​​​​​​​​‌​‌‌‌​‌​‌​​‌‌​​‌​​‌​‌​​‌​​​​​​‌​‌​​​‌​​‌‌‌‌​​‌​​​​‌​​​​​‌‌‌​‌‌​‌‌​​​‍within which are Oak Bluffs and Martha’s Vineyard.

The question presented is whether the single justice had power to frame issues in the case at bar to be tried by a jury and order the same tried at the bar of the Superior Court in Dukes County with the action at law to which reference already has been made.

By G. L. c. 211, § 19, “An action, suit or proceeding arising or pending in the county of Dukes or Nantucket, which is cognizable by the Supreme Judicial Court and which is to be heard before one justice, shall be entered, heard, tried and determined at the court held in the county of Bristol, in all respects as if the same court were held in the county of Dulces or Nantucket, as the case may be . . . .” This section is somewhat broader in its scope than ‍‌​‌​‌​‌‌‌​​‌​‌​‌​​‌‌​​​​​​​​‌​‌‌‌​‌​‌​​‌‌​​‌​​‌​‌​​‌​​​​​​‌​‌​​​‌​​‌‌‌‌​​‌​​​​‌​​​​​‌‌‌​‌‌​‌‌​​​‍a simple regulation of venue. It provides that there shall be no sitting of the Supreme Judicial Court in Dukes County, and that that court, while sitting in Bristol County, shall have all powers it would have if sitting in Dukes County. This statute confers upon the Supreme Judicial Court sitting in Bristol County the same jurisdiction with respect to cases pending before it that it would have if sitting within Dukes County. Without pausing to trace the history of the sittings of that court in Dukes County, it is certain that for many years none have been held there. St. 1820, c. 14, Rev. Sts. c. 81, § 56. In its strict sense no case can be pending in that county because it must be entered in Bristol *519County. It is not necessary to analyze with nicety the meaning of the words in ‍‌​‌​‌​‌‌‌​​‌​‌​‌​​‌‌​​​​​​​​‌​‌‌‌​‌​‌​​‌‌​​‌​​‌​‌​​‌​​​​​​‌​‌​​​‌​​‌‌‌‌​​‌​​​​‌​​​​​‌‌‌​‌‌​‌‌​​​‍this section, “Action, suit or proceeding arising or pending in the county of Dukes.” We are of opinion that the suit at bar falls within their description. It could not have been brought in the Supreme Judicial Court for Dukes County, but by compulsion of statute was brought in Bristol County. The contract out of which it springs was to be performed within Dukes County, one of the parties thereto is a resident of that county and the action at law sought to be restrained is pending in the Superior Court for that county. It might be treated by the court while sitting in Bristol County as “arising or pending” in Dukes County. Therefore it was within the power of the single justice to order the case tried in Dukes County under G. L. c. 214, § 34, which empowers the framing of “issues ‍‌​‌​‌​‌‌‌​​‌​‌​‌​​‌‌​​​​​​​​‌​‌‌‌​‌​‌​​‌‌​​‌​​‌​‌​​‌​​​​​​‌​‌​​​‌​​‌‌‌‌​​‌​​​​‌​​​​​‌‌‌​‌‌​‌‌​​​‍of fact to be tried by a jury and order the same to be tried ... in the Superior Court in the county in which such cause is pending, or upon the request of all parties in any other county.” Upon the facts here disclosed the last ten words just quoted did not limit his power to send the issues to the Superior Court sitting in Dukes County for trial.

Order affirmed.