328 Mass. 241

November 7, 1951 - January 7, 1952

Suffolk County


An action terminated by an entry of neither party pursuant to a settlement of the claim stated in the declaration could not be revived in order to permit an assignee of another claim of the plaintiff against the defendant to assert the other claim in the plaintiff's name.

TORT. Writ in the East Boston District Court dated March 25, 1949. Certain motions described in the opinion were heard by Loschi, J. F. M. Lewis, for the plaintiff. D. A. Canning, for the defendant.

LUMMUS, J. The plaintiff, having a cause of action in tort against the defendant for personal injury and property damage, assigned his claim for property damage to his insurance company. Then he brought an action against the defendant in the District Court of East Boston for the personal injury, which was settled by a release of the claim for personal injury only and an agreement for neither party, no further suit to be brought for the same cause of action.

In ignorance of that action, the insurance company sued in the Boston Municipal Court for the property damage, in the name of the plaintiff. The defendant pleaded res judicata by reason of the result of the action in East Boston. The plaintiff, by the insurer, then discontinued his action in the Boston Municipal Court, and moved to amend his declaration in East Boston by including a claim for property damage, and to vacate the settlement there made. The judge denied the motions on the ground that the action

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was already ended. The Appellate Division dismissed a report, and the plaintiff appealed to this court.

The entry of neither party was equivalent to a nonsuit, or an abandonment of the action, after which the case was no longer pending and no judgment could be rendered in it. Marsh v. Hammond, 11 Allen, 483, 484. Blanchard v. Ferdinand, 132 Mass. 389. White v. Beverly Building Association, 221 Mass. 15, 17. Shapiro v. Lyon, 254 Mass. 110, 117. Whalen v. Worcester Electric Light Co. 307 Mass. 169, 172. What the insurer, in the name of the plaintiff, sought to do was to revive the action in East Boston that had been terminated by the entry of neither party. That could not be done. The judge and the Appellate Division were right.

Order dismissing report affirmed.