Opinion
September 3, 1908.
September 4, 1908.
Present: KNOWLTON, C.J., MORTON, LORING, SHELDON, RUGG, JJ.
BILL IN EQUITY, filed in the Supreme Judicial Court on October 7, 1902, a description of which will be found in 188 Mass. 316-320.
The case was reserved upon demurrer for determination by the full court. On June 19, 1905, the demurrer was overruled by a decision reported in 188 Mass. 315.
On December 10, 1907, after a hearing on the merits, Sheldon, J., made a decree that the plaintiff should recover from the defendant a sum of money found by the justice to be due to it from him, with interest from a date named, and that execution should issue against the defendant for the total sum with costs. On December 24, 1907, the plaintiff appealed. On January 6, 1908, the defendant appealed.
While the appeals were on the docket of the full court, the defendant made a motion to be allowed to file a supplemental answer setting up as a bar to the plaintiff's claim a judgment of the Circuit Court of the United States for the Southern District of New York entered on July 23, 1908, in a suit in equity entitled Old Dominion Copper Mining Smelting Co. v. Frederick Lewisohn others, executors.
Arguments were heard upon the motion at a special sitting of the full court at Boston on September 3, 1908.
On September 4, 1908, the court made the following order:
"ORDERED, that the clerk . . . make the following entry . . . viz.:
"The defendant having made an application for leave to file a supplemental answer, the decree is vacated and the case is remitted for hearing before a single justice upon the question whether the defendant shall be allowed to file the supplemental answer, and, if his motion for leave to file the supplemental answer is allowed, for a further hearing upon the matters set up in this answer, and for reversal or such modification of the original decree, if any, as ought to be made by reason of these matters. After the hearing or hearings the original decree, unless reversed, is to be entered with or without such modification, and the parties shall have the same right of appeal as they had when the decree was first made, or the justice may reserve for the full court the questions that arise upon the supplemental answer."
C.G. Littlefield (of New York) A. Hemenway, (J.W. Farley with them,) for the defendant.
L.D. Brandeis E.F. McClennen, for the plaintiff.
In a suit in equity, while appeals by both the plaintiff and the defendant from a decree made by a single justice of this court, ordering the defendant to pay to the plaintiff a certain sum of money, were pending before the full court, the defendant applied to this court for leave to file a supplemental answer setting up a judgment of another court, rendered after the appeals were taken, as a bar to the plaintiff's claim. It was ordered, that the decree be vacated, and that the case be remitted for hearing before a single justice upon the question whether the defendant should be allowed to file the supplemental answer, and, in case such filing should be allowed, for further hearing after the filing of the supplemental answer upon the matters set up in that answer, and for reversal or such modification of the original decree, if any, as ought to be made by reason of these matters, or for reservation for determination by the full court of the questions arising upon the supplemental answer.