Summary
In Martin v. Hunt, 352 Mass. 774, we held that the same rule applies when a pleading is dismissed as defective and an amendment is filed which fails to cure it. The result is no different where the plaintiff has discontinued while a motion to amend is pending. It follows, in the terms of the report, that the plaintiff's action is barred and that the defendant's motion for summary judgment should be allowed.
Summary of this case from Turner v. DahlbergOpinion
April 28, 1967.
Richard J. Martin, pro se.
Charles S. McLaughlin for the defendant.
This bill in equity seeks an accounting of partnership profits, discovery rights, the cancellation of a "release," and money damages. The defendant Hunt's plea in bar, based on res judicata, was sustained, and a final decree was entered dismissing the bill as to him. The plaintiff appealed. The plea in bar was rightly sustained. The trial judge found that the plaintiff had previously filed in the Superior Court a bill against Hunt which contained every allegation and prayer to be found in the present bill and did not substantially differ from it. The earlier proceeding was removed to the United States District Court for the District of Massachusetts. There Hunt's motion to dismiss was granted on the ground that the bill was argumentative and included extraneous and irrelevant allegations. The plaintiff was allowed to file an amended bill, but this was dismissed on similar grounds. The plaintiff's appeal from that decision to the Court of Appeals was dismissed for want of prosecution. It is established that "a judgment in . . . [an] earlier action following the sustaining of a demurrer is a bar to a second action for the same cause of action where the plaintiff had been granted leave to amend his earlier declaration and had neglected or refused to do so." Hacker v. Beck, 325 Mass. 594, 597. See Whitney v. Whitney, 299 Mass. 547, 550; Elfman v. Glaser, 313 Mass. 370, 373-374. The same rule should apply where a pleading is dismissed as defective and an amendment is filed which fails to cure it. In each instance the plaintiff has been given two chances to state his case and is not entitled to burden the courts and the opposing parties with further attempts.
Final decree affirmed.