Edgett v. Palmer

Braley, J. It is unnecessary to determine whether if a demurrer had been interposed seasonably the trial court although having jurisdiction of the subject matter under R. L. c. 159, § 1, should have dismissed the bill in the exercise of its judicial discretion upon the grounds stated in Carson v. Dunham, 149 Mass. 52, 53, 56. Kempson v. Kempson, 13 Dick. 94. The defendant Palmer, who is the appellant, not only was subject- to the territorial jurisdiction of the court, but appeared, answered and filed a cross bill. And after a trial on the merits a final decree was entered granting permanent injunctive relief as prayed for in the original bill. The defence, that for the wrongs complained of the plaintiff could have no relief in equity because he had a plain and adequate remedy at law which was available in the action pending against him in the courts of Vermont, could be taken advantage of only by demurrer, or setting up this defence specially in his answer. The objection comes too late after a defendant has answered generally, asked for relief by a cross bill, and submitted himself to the jurisdiction. Tarbell v. Bowman, 103 Mass. 341, 345. Crocker v. Dillon, 133 Mass. 91, 102. Driscoll v. Smith, 184 Mass. 221, 223. The plaintiff’s right to general relief having been settled, and the evidence not having been reported, the only question before us is whether the decree as to the appellant is warranted by the charging part of the bill and is consistent with the findings of the judge. White v. White, 169 Mass. 52. Robinson v. Brown, 182 Mass. 266, 267. Kaatz v. Curtis, 215 Mass. 311. We have considered all the questions argued and the decree being in accordance with these requirements cannot be reversed. But, as it appears that the cross bill was ordered dismissed without costs, the decree must be modified by the insertion of a clause to this effect and as thus modified it should be affirmed. Holbrook v. Schofield, 211 Mass. 234, 237. Ordered accordingly.