Equity Pleading and Practice, Appeal, Motion for leave to file supplemental answer after rescript ordering injunction. Election.
A motion to open an order for a final decree, contained in a rescript from this court directing that the defendant in a suit in equity be restrained from the further prosecution of an action at law, and to permit the filing of a supplemental answer, properly may be denied, where it appears that the ground for defence set up in the supplemental answer was ignorance of the law as to the effect of certain conduct of the defendant as to an election, that the issues of fact sought to be raised by the supplemental answer were open under the original answer, and that the rule as to election, referred to in the proposed supplemental answer, had been discussed in a decision by this court overruling exceptions by the defendant in the action at law, the prosecution of which was sought to be enjoined in the suit in equity.
BRALEY, J.
The defendant after rescript and before the entry of a final decree moved for leave to file a supplemental answer and that the case might be reopened. The motion having been denied and a final decree for the plaintiffs entered, he appealed to the full court.
It is unnecessary to rehearse the history of this litigation. It may be found in Noyes v. Noyes, 224 Mass. 125, and Noyes v. Noyes, 233 Mass. 55, where all the salient facts are elaborately recited. The exact question before us is, whether as matter of right, or of discretion, the defendant on the record ought to be granted a new trial to enable him to present the defence alleged in the supplemental answer. It was said in Noyes v. Noyes, 233 Mass. 55, 58, "The provisions of the will for the defendant and the terms of his contract with the testator present a case for the application of the doctrine of election," and it was held on the master's report, that, having elected at the outset to accept the provisions of the will, he could not have maintained the action at common law on the contract, and accordingly enforcement of the judgment thereon should be permanently enjoined. It is urged, however, that, having been ignorant of any legal requirement obliging him to chose between the devises and the enforcement of his rights in an action at law on the contract, he could have had no intention when accepting the benefits conferred by the will to deprive himself of his rights under the contract. But the defendant has constantly retained that which was devised, and his alleged ignorance of the law, especially in the light of what was said in the opinion in Noyes v. Noyes, 224 Mass. 125, decided before the present suit was begun, where the rule as to election is referred to and commented on, is no excuse.
The issues of fact now raised, moreover, were open under the original answer, and it is too late where manifest injustice is not shown to grant a retrial of the merits, which in effect would be a reversal of the previous decision. Malden Melrose Gas Light Co. v. Chandler, 211 Mass. 226, 227.
It being plain that the appellant fails to make out a case as matter of right, and having had his day in court with full opportunity to make his defence, we are of opinion that the finding and order of the single justice disallowing the motion should stand, and the decree affirmed with costs. Mason v. Pomeroy, 154 Mass. 481.
Ordered accordingly.