The judge properly dismissed the plaintiffs' amended complaint (Mass.R.Civ.P. 12[b], 365 Mass. 755 ) because even generously read, it did not state a claim under the foreign judgment sued upon. The complaint sounded against the defendants individually while the judgment was against the defendants as trustees. In accordance with Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974), leave should have been requested, and granted, to amend the complaint to conform the claim to the terms of the judgment. Charbonnier v. Amico, 367 Mass. 146 , 153-154 (1975). Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288 , 289 (1977). Jessie v. Boynton, 372 Mass. 293 , 295 (1977). Rafferty v. Sancta Maria Hosp., 5 Mass. App. Ct. 624 , 626-628 (1977). At argument, it was disclosed that a new action has been filed which now states an appropriate claim under the foreign judgment. In order that the judgment (in the case before us) which is not on the merits, should not operate as a bar to that action (Mass.R.Civ.P. 41[b], 365 Mass. 805 ), it is to be modified by inserting after the word "dismissed" in the last line of the first paragraph thereof, the words "without prejudice" and as so modified, the judgment is affirmed. See 9 Wright & Miller, Federal Practice and Procedure Section 2373, at 238-242 (1971). Neither party is to have costs on this appeal.
None of the questions sought to be raised by the motion for a new trial or passed on by the trial judge in the course of denying that motion has been argued within the meaning of Rule 1:13 of the Appeals Court, as amended, 3 Mass. App. Ct. 801 (1975), or within the meaning of Mass.R.A.P. 16 (a)(4), as amended, 367 Mass. 921 (1975). See Lolos v. Berlin, 338 Mass. 10 , 13-14 (1958). We have, nevertheless, examined all the stated grounds of the motion in light of the trial transcript and the judge's findings and rulings on the motion and find no merit to any aspect of the appeal. Accordingly, the order denying the motion is affirmed.
There has been no showing on this record that the judge
abused his discretion or otherwise committed an error of law in excluding certain testimonial and documentary evidence pertaining to the victim. We need say only that even if the defendants could have (which we believe they have not) shown that the excluded evidence was "helpful and relevant to the issue on trial," Commonwealth v. Shea, 323 Mass. 406 , 417-418 (1948), the proffered evidence was properly excludable under G. L. c. 233, Section 21B. Moreover, we can find no fault with the judge's handling of this matter, as it was in full accord with the procedural mandate of the statute. There was no error.