352 Mass. 774

April 28, 1967

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.


352 Mass. 774

April 28, 1967

In the matter of the alleged will of the late Frank Wojciechowicz, two groups of contestants moved to have jury issues framed on (1) execution, (2) testamentary capacity, and (3) fraud and undue influence. The judge allowed an issue to be framed on the third ground, and the proponent appealed. We have examined the statements of expected evidence in the light of the familiar governing principles (see Spilios v. Bouras, 337 Mass. 176, 177, and cases cited) and are of opinion that the decision of the judge ought not to be disturbed. We note that one group of contestants prayed: "3. Was the execution of said alleged will of . . . Frank Wojciechowicz procured by the fraud or undue influence of Phyllis Salach or any of them [sic], exercised upon the said Frank Wojciechowicz?" (emphasis supplied). The third prayer in the motion of the other group was the same except that the italicized words were omitted. The decree was: "Motion allowed as to Issue number 3." This decree might apply to either motion. The issue to be framed ought not to include the italicized words. There was no expected evidence that anyone other than Phyllis Salach was charged with exercising undue influence. See Morin v. Morin, 328 Mass. 33.

The decree, as herein limited, is affirmed.


352 Mass. 774

May 1, 1967

Within a few months after their marriage in June, 1962, the parties separated. In November, 1962, the wife filed a petition

Page 775

for separate support. In January, 1963, the husband brought a libel for divorce, which was dismissed, after hearing. In January, 1964, the husband brought a libel to annul the marriage. The judge, after hearing, entered a decree dismissing the libel and awarded counsel fees in the amount of $1,500 to counsel for the wife. The only question presented by the husband's appeal from this decree is whether the award was excessive. In the separate support proceedings a decree was entered adjudging that the wife was living apart from her husband for justifiable cause. The decree also ordered the husband to pay to the wife $75 weekly for her support together with the sum of $5,000. The further sum of $5,000 for costs and expenses was ordered to be paid to counsel for the wife. In his appeal from this decree the husband challenges those portions ordering weekly support of $75, the lump sum payment of $5,000, and the payment of counsel fees in the amount of $5,000. The judge made a report of the material facts in both the annulment and separate support proceedings. The evidence in both cases is reported. We perceive no reason to disturb the award of counsel fees in the sum of $1,500 in the annulment proceedings. We likewise are not persuaded that the amounts allowed for support were excessive in the circumstances. See Coe v. Coe, 313 Mass. 232, 235. The lump sum allowance of $5,000 was for past support, covering a period of about three years. Viewing the award of counsel fees in the light of the principles set forth in Hayden v. Hayden, 326 Mass. 587, 596-597, a majority of the court are of opinion that it was excessive and should be reduced to $3,000. The decree in the annulment case is affirmed. The decree in the separate support case with respect to the award of counsel fees is to be modified, as herein stated, and as so modified, is affirmed. The husband's appeal from the decree dismissing his libel for divorce is waived.

So ordered.