Home HENRY M. MINGOLLA vs. MARTHA C. MINGOLLA (and a companion case [Note 1])

345 Mass. 767

January 3, 1963

Decrees affirmed. The husband filed a libel for divorce, listing six minor children born to him and the libellee. Subsequently, the wife filed a petition for separate support listing as born to them the six children and a seventh child born after the filing of the libel. A motion by the wife to amend the husband's libel by adding the seventh child was denied. The judge granted a divorce to the husband on the ground of adultery and dismissed the petition for support. The wife appealed. She contends that the judge's rulings constitute an indirect adjudication of the illegitimacy of the seventh child. This contention is unsound. Sayles v. Sayles, 323 Mass. 66 . There was no error.


FOOTNOTES

[Note 1] The companion case is by Martha C. Mingolla against Henry M. Mingolla.

Home ARON LILJESTRAND vs. WORCESTER COUNTY NATIONAL BANK, executor.

345 Mass. 767

January 3, 1963

Orders affirmed. The plaintiff purports to appeal from: (a) an order which sustained a demurrer to his third substitute amended declaration with leave to amend within twenty days and (b) an order which denied his motion to amend, pursuant to said leave, by substituting a fourth substitute amended declaration and which denied leave further to amend. The proposed amended declaration did not cure the substantive defects of the four declarations which preceded it. Massachusetts Gasoline & Oil Co. v. Go-Gas Co. 267 Mass. 122 , 126. Count one failed to comply with G. L. c. 231, Section 7, Second; count two did not comply with G. L. c. 231, Section 14; count three was defective in that the account annexed, which serves the function of a bill of particulars or specifications, Babcock v. Thompson, 3 Pick. 446 , stated nothing to enable the judge or the adverse party to understand the nature of the claim. Shea v. Crompton & Knowles Loom Works, 305 Mass. 327 , 328-329. Snow v. Metropolitan Transit Authy. 323 Mass. 21 , 23. The denial of leave further to amend was within the discretion of the judge. Foster v. Shubert Holding Co. 316 Mass. 470 , 477. No abuse of discretion appears.

Home MARY DOLEVA & another vs. ROBERT W. BRAMLEY & others.

345 Mass. 767

January 3, 1963

Exceptions overruled. Judgment for the defendants. Following the decision in Doleva v. Tedeschi's Super Market, Inc. 344 Mass. 539 , two

Page 768

plaintiffs in that case brought the present action "for deceit, conspiracy and negligence." The defendants are (1) Tedeschi's Super Markets, Inc., a defendant in the earlier action [Note 1]; (2) its insurer, Aetna Insurance Company; (3) its counsel in the earlier action; (4) Halpern Associates, Inc., successor of Halpern-Abelson, Inc., a defendant in the earlier action; (5) that defendant's attorney in the earlier action; and (6) an employee of Tedeschi's Super Markets, Inc. Successive demurrers were sustained to the original declaration of eighteen counts and to two amended declarations. Leave further to amend has been refused. In the second amended declaration, which is the only one before us (Vieira v. Menino, 322 Mass. 165 , 170), there are eight counts which occupy fourteen pages of the printed record. The counts do not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action. G. L. (Ter. Ed.) c. 231, Section 18, Fourth. A trial on this declaration would be a travesty of confusion.


FOOTNOTES

[Note 1] In the writ in the earlier case this defendant was described as Tedeschi's Super Market, Inc.