Opinion
January 28, 1938.
PRESENT: Flynn, C.J., Moss, Capotosto, Baker and Condon, JJ.
Order to Show Cause.
On an order to show cause why judgment should not be entered for defendant, plaintiff presented certain questions raised for the first time, but while it is advisable that the case be disposed of on its present record, yet as the issues are complicated and future litigation may be brought in order to have determined important rights in the disputed property, which were not finally determined in the opinion and certain possible rights of the state and possible rights which may be set up by persons not parties in the case, the entry of judgment shall be without prejudice to the right of the plaintiff to institute further legal proceedings in order to establish if he can, the rights to which he claims to be entitled to the property still the subject of dispute between the parties.
ORDER TO SHOW CAUSE. Decree to be entered without prejudice.
McGovern Slattery, James A. Higgins, for plaintiff.
John J. Dunn, for defendant.
In this case the parties were given an opportunity to appear before this court and show cause why judgments should not be entered in accordance with our decision as set out in the opinion filed herein on January 12, 1938. The plaintiff thereupon appeared before us and attempted to show such cause. We are of the opinion that he has failed to do so.
In support of his contention that he be granted a new trial, the plaintiff has presented certain questions which have not heretofore been briefed or argued by the parties, and which now are raised in the instant case for the first time. In our judgment it is advisable that this case be closed and disposed of on its present record. We realize, however, that the issues in the case are complicated, and that future litigation may be brought in order to have determined important rights in and to the disputed property. Among them may be rights which the plaintiff now claims here, but which were not finally determined in our opinion filed herein, certain possible rights of the state, and those which conceivably may be set up by persons not parties to the present case. We hold, therefore, that the entry of the judgments in the case at bar shall be without prejudice to the right of the plaintiff to institute further legal proceedings, if he so desires, in order to establish, if he can, the rights to which he claims to be entitled in and to the property still the subject of dispute between the parties hereto.
The case is remitted to the superior court with direction to enter judgments, without prejudice, in accordance with the opinion filed January 12, 1938, and with this opinion.