Maria Capaccio vs. Amost B. Merrill & another

Massachusetts Supreme Judicial Court1915-12-16

222 Mass. 308

Summary · law.co

Holding. A judgment rendered in a prior action on a demurrer challenging the sufficiency of a complaint's form, where the alleged defect is cured in an amended complaint in the present action, does not bar the current lawsuit. The judgment in the plaintiff's favor on the first count is affirmed.

In this contract or tort dispute, the defendant Burleigh sought to bar the current action by pointing to a prior judgment rendered against the plaintiff in an earlier suit between the same parties. However, the earlier judgment had been entered on a demurrer—a procedural objection that the plaintiff's initial complaint was technically defective—rather than on the merits of the case. Because the defect identified in the original complaint was cured in the amended complaint filed in the present action, the prior judgment does not operate as a bar to this lawsuit. The court surveyed numerous jurisdictions and found uniform agreement on this principle.

A secondary dispute arose concerning the first count of the plaintiff's amended complaint. The defendant's demurrer to the original declaration had been sustained, but the plaintiff amended only the second and third counts. Rather than move for judgment on the unameended first count, the defendant demurred again to all three counts in the amended declaration. The trial court overruled that second demurrer, and the case proceeded to trial, where the jury returned a verdict for the plaintiff on the first count. The defendant argued that because the first count had been struck by the initial demurrer, no valid count remained upon which a verdict could rest. This argument failed because the defendant's decision to file a second demurrer and proceed to trial constituted a waiver of his right to press the defect in the first count.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a prior judgment on demurrer based on technical defects bars a subsequent action where the defect is remedied
Whether a defendant waives a prior successful demurrer by filing a subsequent demurrer and proceeding to trial
Distinction between judgments on demurrer for formal defects versus judgments on the merits

Procedural posture

The defendant Burleigh appealed from a trial court judgment in favor of the plaintiff Capaccio on the first count of an amended declaration, raising both a res judicata defense based on a prior judgment and a challenge to the sufficiency of the first count based on a sustained demurrer to the original declaration.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Loring, J.

In this action the defendant Burleigh set up in bar the fact that judgment had been rendered in his favor in a former case between the same parties, based upon the same cause of action. From an inspection of the record in the former case it appears that the earlier judgment in favor of the defendant was rendered on a demurrer based upon the ground that the earlier declaration was defective and that that defect is cured in the declaration in the present action.

In such a case the former action is not a bar. It was so held in Wilbur v. Gilmore, 21 Pick. 250. To the same effect see Foote v. Gibbs, 1 Gray, 412, 413. And that is established in other jurisdictions. See Wiggins Ferry Co. v. Ohio & Mississippi Railway, 142 U. S. 396; Detrick v. Sharrar, 95 Penn. St. 521; Porter v. Kingsbury, 77 N. Y. 164; Docter v. Furch, 76 Wis. 153; Thomas v. Bland, 91 Ky. 1; Swanson v. Great Northern Railway, 73 Minn. 103; Rodman v. Michigan Central Railroad, 59 Mich. 395; Moore v. Dunn, 41 Ohio St. 62; Terry v. Hammonds, 47 Cal. 32; Terre Haute & Indianapolis Railroad v. State, 159 Ind. 438; Papworth v. Fitzgerald, 111 Ga. 54; Wells v. Moore, 49 Mo. 229; Alabama & Vicksburg Railway v. McCerren, 75 Miss. 687; Duke v. Postal Telegraph Cable Co. 71 S. C. 95; State v. Roth, 47 Ark. 222; Florida Southern Railway v. Brown, 23 Fla. 104; State v. Cornell, 52 Neb. 25; O’Hara v. Parker, 27 Ore. 156. We know of no case to the contrary.

The opposite result is reached (first) when the demurrer in the earlier action is based on the merits; see Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 205; Yates v. Utica Bank, 206 U. S. 181, 183; Northern Pacific Railway v. Slaght, 205 U. S. 122, 130; and (second) when leave to amend is given in the earlier case and the plaintiff refuses to do so. See Correia v. Supreme Lodge Portuguese Fraternity, 218 Mass. 305.

• To avoid misunderstanding it may be added that the rule in Foye v. Patch, 132 Mass. 105 (as to which see Homes v. Aery, 12 Mass. 134, 137; Thatcher v. Gammon, 12 Mass. 268, 269, 270; Loring v. Mansfield, 17 Mass. 394, 396; Homer v. Fish, 1 Pick. 435, 439; Fuller v. Shattuck, 13 Gray, 70, 71; Flint v. Bodge, 10 Allen, 128, 130; Bassett v. Connecticut River Railroad, 150 Mass. 178; Clare v. New York & New England Railroad, 172 Mass. 211; Cotter v. Boston & Northern Street Railway, 190 Mass. 302), does not apply in cases like that now before us.

The defendant has argued a question not raised by the bill of exceptions, but one which will be raised when the question is reached of entering judgment on the verdict rendered in this "case. The declaration in the present case originally consisted of three counts. To this declaration and to each count of it this defendant demurred, and his demurrer was sustained. When the court sustained that demurrer the plaintiff was given leave to amend her declaration. Pursuant to that leave the plaintiff amended the second and third counts but did not amend the first count of the declaration. Then the defendant demurred again “to the first, second and third counts of said amended declaration,” and this demurrer was overruled. After this demurrer had been overruled the parties went to trial upon issues raised by an answer. At the trial the presiding judge required the plaintiff to elect upon which count she would go to the jury, and she elected to go to the jury upon the first count. The jury rendered a verdict in favor of the plaintiff on that count. The defendant now contends that inasmuch as the demurrer to the original declaration so far as the first count was concerned was sustained, the verdict was rendered on a count which was no longer in existence at the time of the trial.

That contention cannot be sustained. When the first demurrer to the original declaration was sustained and the plaintiff amended the second and third counts only, the defendant on motion could have had judgment entered in his favor on the first count. But this was waived by him when he demurred a second time to the first count and went to trial on all three counts.

The first count is sufficient. There is no difficulty in entering judgment on the verdict which has been rendered in favor of the plaintiff on that count.

The entry must be

Exceptions overruled.