Correia v. Portuguese Fraternity

30 Citing cases

  1. Elfman v. Glaser

    47 N.E.2d 925 (Mass. 1943)   Cited 20 times

    . . . In these conditions, where a plaintiff has refused to amend his pleading a judgment rendered on a demurrer causes the matter to become res judicata as between the parties `as to every issue which was or might have been litigated in that action and' estops the plaintiff `from contesting the matter further.' Correia v. Portuguese Fraternity, 218 Mass. 305, 307. . . . The doctrine of res judicata, therefore, applies where the issues have in fact been fully tried and in cases where the plaintiff has had ample opportunity to state his cause of action completely and correctly so as to have the issues tried but has refused to embrace that opportunity." The exception here stated to the rule that ordinarily a judgment founded upon the sustaining of a demurrer does not constitute res judicata is to be distinguished from the exception to this rule "when the demurrer in the earlier action is based on the merits.

  2. Abbott v. Bean

    295 Mass. 268 (Mass. 1936)   Cited 24 times

    As in the case of a decree founded on evidence (see Corbett v. Craven, 196 Mass. 319; E.C. Bowman Son Co. v. Hern, 239 Mass. 200), the bar of such a decree extends to every issue which in fact was or which in law might have been litigated in the earlier suit. See Correia v. Portuguese Fraternity, 218 Mass. 305, 307; Capaccio v. Merrill, 222 Mass. 308, 310; Northern Pacific Railway v. Slaght, 205 U.S. 122, 130-131. But the doctrine of res judicata is not applicable where the demurrer in the earlier suit was sustained on a formal or technical ground.

  3. Local No. 11, c., Ironworkers v. McKee

    114 N.J. Eq. 555 (N.J. 1933)   Cited 4 times
    Appointing receiver to manage union's business until members could elect new officers

    The proofs herein clearly manifest that it would be futile for the complainants to seek any redress from the international. See Walsche v. Sherlock, 110 N.J. Eq. 223 (at p. 239), citing Correia v. Supreme Lodge of Portuguese Fraternity, c.,218 Mass. 305; 105 N.E. Rep. 977, wherein the court said: "Of course, the plaintiffs would not be bound to go through a useless formality or to seek for justice at the hands of a tribunal which had prejudged the matter in issue." And see, also, Malloy v. Carroll, 272 Mass. 524; 172 N.E. Rep. 790, wherein the court said: "The law does not require a vain form.

  4. Gervasi v. Societa Giusippi Garibaldi

    96 Conn. 50 (Conn. 1921)   Cited 6 times

    The hearing of a subject of such serious import ought to be conducted with fairness, upon reasonable notice to the accused member of the charge upon which he is to be tried, upon full opportunity to him to present his defense, and, after reasonable proof of the charge as made, a vote passed sustaining the charge and duly expelling the member from the society. Correia v. Supreme Lodge of the Portuguese Fraternity, 218 Mass. 305, 308, 105 N.E. 977. If, in fact, the meeting of the general assembly were an invalid one because of the failure to notify the members of its purpose, the defendant argues that the plaintiff cannot complain because, subsequent to this action, at a regular meeting, it ratified the action taken expelling the plaintiff.

  5. Baron v. Fontes

    42 N.E.2d 280 (Mass. 1942)   Cited 7 times

    This appears to be a case where no adequate remedy was available to the plaintiffs within the association. Correia v. Portuguese Fraternity, 218 Mass. 305, 309. Puleio v. Sons of Itala Neighborhood Mutual Benefit Society, 266 Mass. 328, 329. Malloy v. Carroll, 272 Mass. 524, 537, 538. 3. The plaintiffs have moved in this court that this appeal be dismissed on the ground that since the decree was entered in the Superior Court all of the appealing defendants have been expelled from the association by vote taken at a general meeting; that the plaintiff Baron has been confirmed in his office as president; and that therefore the questions raised have become moot. It appears, however, from an affidavit filed by certain of the defendants in connection with this motion that they dispute the validity of their expulsion, and that the issues may remain of importance.

  6. Sullivan v. Barrows

    303 Mass. 197 (Mass. 1939)   Cited 28 times
    In Sullivan v. Barrows, 303 Mass. 197, 21 N.E.2d 275, it is said that the measure of damages for such attempted expulsion and interference with a member's employment is not based upon a breach of contract but upon the direct and proximate results of the wrongful acts of the defendants.

    This principle of law is well established and is decisive if pertinent to the present case. Correia v. Portuguese Fraternity, 218 Mass. 305. Puleio v. Sons of Itala Neighborhood Mutual Benefit Society, 266 Mass. 328. But no charges had ever been preferred against the plaintiff and the right of appeal provided in such cases is not applicable. The local referred the matter to the executive board with full power to act, but the master's report does not disclose that the board took any further action after the plaintiff left his employment upon November 12, 1935, or that it ever reported to the local or that the latter took any action. The defendants have not pointed out any provisions in the constitution or by-laws of either the alliance or the local that, we think, govern a situation like the present, and, after a careful perusal of them, we are unable to find any, even if they are so liberally construed as to include not only what is expressly mentioned but also what appears by fair implication.

  7. Whitney v. Whitney

    13 N.E.2d 401 (Mass. 1938)   Cited 18 times

    In these conditions, where a plaintiff has refused to amend his pleading a judgment rendered on a demurrer causes the matter to become res judicata as between the parties "as to every issue which was or might have been litigated in that action and" estops the plaintiff "from contesting the matter further." Correia v. Portuguese Fraternity, 218 Mass. 305, 307. Capaccio v. Merrill, 222 Mass. 308, 310. Cheraska v. Ohanasian, 259 Mass. 341, 344. Karas v. Karas, 294 Mass. 230, 231. Abbott v. Bean, 295 Mass. 268, 275. Bonifazi v. Breschi, 296 Mass. 544, 548. See also Reid v. Holmes, 127 Mass. 326. The case at bar is distinguishable from Levinton v. Poorvu, 293 Mass. 338, 345, where the demurrer in the earlier case was sustained on the ground that the bill did not concern a cause of action falling within equity jurisdiction.

  8. Levinton v. Poorvu

    200 N.E. 9 (Mass. 1936)   Cited 9 times

    '" See also Wight v. Wight, 272 Mass. 154. The decree dismissing the bill was not converted into an adjudication upon the merits by reason of the fact that leave to amend the bill was not availed of following the sustaining of the demurrers. There is nothing to the contrary in Correia v. Portuguese Fraternity, 218 Mass. 305; Capaccio v. Merrill, 222 Mass. 308; Keown v. Keown, 231 Mass. 404; Cheraska v. Ohanasian, 259 Mass. 341, relied upon by the plaintiff. The plaintiff's exception to the admission of evidence of fraud and collusion is without merit.

  9. Campbell v. Brotherhood of Loc. Firemen

    165 Va. 8 (Va. 1935)   Cited 7 times

    19 R.C.L., page 1224. Franklin v. Sovereign Camp W.O.W. 145 Okla. 159, 291 P. 513; State v. Landwehr (Mo. App.) 261 S.W. 699; Commonwealth v. Union League, 135 Pa.St. 301, 19 A. 1030, 8 L.R.A. 195, 20 Am.St. Rep. 870; Correia v. Supreme Lodge of Portuguese Fraternity, 218 Mass. 305, 105 N.E. 977; Sweet v. Modern Woodmen of America, 169 Wis. 462, 172 N.W. 143. When we come to deal with property rights and with insurance features, there is less unanimity of opinion.

  10. Walsche v. Sherlock

    159 A. 661 (N.J. 1932)   Cited 22 times

    In Kane v. SupremeTent, c., 113 Mo. App. 104; 87 S.W. Rep. 547, a delay of two or three years before the final tribunal met was considered sufficient to excuse the exhaustion of remedies within the order; and in Brown v. Supreme Court, Independent Order of Foresters,176 N.Y. 132; 68 N.E. Rep. 145, the rule was held not to apply where no meeting of the tribunal of last resort was to be held for over a year and then in a distant city; and generally, it is held that where the appeal would be futile the remedies within the order need not be exhausted because "the law does not require a vain form." Barbrick v. Huddell, 245 Mass.428; 139 N.E. Rep. 629; Correia v. Supreme Lodge of PortugueseFraternity, c., 218 Mass. 305; 105 N.E. Rep. 977; Malloy v. Carroll, 272 Mass. 524; 172 N.E. Rep. 790. Although in Mulcahy v. Huddell, 272 Mass. 539; 172 N.E. Rep. 796, a possible delay of four years before the meeting of the tribunal of last resort was held not of itself sufficient to excuse compliance with the rule. See, also, generally on this subject, Puleio v. Sons of Itala, c., 266 Mass. 328;165 N.E. Rep. 118; Snay v. Lovely (Mass.), 176 N.E. Rep. 791; Fritz v. Knaub, 103 N.Y. Supp. 1003; Corregan v. Hay,87 N.Y. Supp. 956; Local Lodge No. 104, c., v. International Brotherhood ofBoiler Makers, c., 158 Wn. 480; 291 Pac. Rep. 328; Rueb v. Rehder, 24 N. Mex. 534; 174 Pac. Rep. 992; Smith v. SouthSlavonic Catholic Union, 99 W. Va. 256; 128 S.E. Rep. 306. The exceptions to the general rule requiring an exhaustion of remedies are best stated in 19 R.C.L. 1231 ยง 41, as follows: