James D. Martin &Amp; Others v. Amos P. Tapley

• Decision Date: 09 November 1875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James D. Martin & others v. Amos P. Tapley

119 Mass. 116

James D. Martin & others v. Amos P. Tapley

Supreme Court of Massachusetts

November 9, 1875

[Syllabus Material]

Essex. Petition to establish the truth of exceptions. The material facts, appearing by the records referred to in the petition were as follows:

An action of contract, brought by Amos P. Tapley against Lucretia W. Martin, was tried at November term 1870 of this court in Essex, and a verdict returned for the plaintiff, and exceptions taken by the defendant at the trial were allowed by the presiding judge, and entered upon the law docket in that county at November term 1871. On February 26, 1872, the defendant pleaded a certificate of discharge in bankruptcy obtained January 20, 1872, in the District Court of the United States for the District of Maryland. On June 15, 1874 Ambrose A. Ranney, Esquire, the attorney for the defendant suggested of record that her death occurred June 12, 1874. On October 22, 1874, the plaintiff filed a motion that the plea of discharge in bankruptcy be taken off the record of this court, upon the ground that it would appear from an inspection of the whole record and final decree of the United States Court (copies of which were produced) that the certificate of discharge had not been granted, but had been refused. In November, 1874, the exceptions taken at the trial were argued by Mr. Ranney, as amicus curiae, and by the counsel for the plaintiff, and overruled. See Tapley v. Martin, 116 Mass. 275.

At a subsequent hearing before Wells, J., on motions of the plaintiff that the plea of discharge in bankruptcy be ordered to be taken off the record, and that judgment be entered for the plaintiff nunc pro tunc as of November term 1871, James D. Martin, the son and heir of the deceased defendant, and Andrew C. Mudge and Penfield B. Goodsell, the sureties upon the bond given by the defendant to dissolve the attachment upon the writ, were "allowed to appear for the purpose of being heard upon the pending motions to strike off the plea of bankruptcy and to enter judgment nunc pro tunc, but not as parties to the suit;" Mr. Ranney, counsel for the defendant in her lifetime, was heard as amicus curiae, and also as counsel for the heir and the sureties; and it was ordered "that said motions be granted, and that said plea of discharge in bankruptcy be taken off the record of this court -- it appearing that the alleged discharge, a copy of which was filed in support of said plea, was vacated by the court by which it purported to have been granted, before the filing of said plea, and at the term at which the alleged discharge was granted, and upon a final hearing and adjudication thereon a discharge was refused in the defendant's lifetime" -- and that judgment be entered for the plaintiff in this action nunc pro tunc as of November term 1871.

Mr. Ranney, as counsel for the defendant during her lifetime, and as amicus curiae, and as attorney of the heir and the sureties, tendered a bill of exceptions to this order and to various rulings at the hearing upon the motions; and the bill of exceptions was disallowed by the judge.

The heir, the sureties, and Mr. Ranney, as counsel for the deceased defendant and as amicus curiae, thereupon filed this petition to establish the truth of the exceptions so tendered; alleging the facts above stated, and also that the defendant died leaving no estate of any kind in this Commonwealth, and there had never since been any property, effects or credits here to be administered upon, and therefore no letters of administration, either original or ancillary, had been or could be granted here; and that the exceptions alleged were true, and were disallowed by the judge solely because neither of the petitioners was so far a party to the suit or so far related to it as to be entitled to be allowed or to prosecute a bill of exceptions.

The petitioners moved that the petition be referred to a commissioner to hear the parties and report the facts to the court. The original plaintiff moved to dismiss the petition, because the petitioners were not entitled to allege exceptions.

Petition Dismissed.

F. W. Hurd, (A. A. Ranney with him,) for the petitioners. This is a petition to prove exceptions taken to the right of the court to enter judgment for the plaintiff nunc pro tunc after the death of the defendant. The objection is raised that there is no party before this court to take exception. The theory upon which such a judgment is entered is, that the court by a fiction goes back to the time when the parties were living, and enters such judgment as would then have been entered but for the delay of the law. This is expressed in Currier v. Lowell, 16 Pick. 170, 173, as follows: "The court will go back to the time when the judgment might have been rendered on the verdict, if no motion had been made which prevented it." In Kelley v. Riley, 106 Mass. 339, 342, it is said that "the court in now rendering judgment will go back to the time when it would have been rendered if no action had been taken to prevent it." In Bridges v. Smyth, 8 Bing. 29, 32, Tindal, C. J., said: "The case therefore does not depend on the St. of Car. II., but on the rule of common law, that where parties are hung up by act of the law, neither of them loses his right, but eventually judgment is entered nunc pro tunc, as if the party were still alive." Similar expressions are found in a great number of cases. Freeman on Judgments, (2d ed.) § 56 & seq.

If this is the theory for the purpose of entering judgment, is it not the same for the purpose of showing cause why such judgment should not be entered? In Miles v. Bough, 15 L. J. (N. S.) Q. B. 30, 32, Wightman, J., said: "If it could be shown that the defendants or any third person would be prejudiced by entering the judgment as prayed, that would no doubt be ground for the court refusing to interfere; but in the absence of any well founded objection of that kind, it appears to me that the rule for entering the judgment nunc pro tunc must be made absolute."

The cases are numerous where arguments have been entertained by courts upon their power to render a judgment nunc pro tunc after the death of one party, and no suggestion has ever been made that there was no party in court competent to resist the motion. The arguments proceed upon the fiction that they are had while the parties are living. Currier v. Lowell 16 Pick. 170. Mayor of Norwich v. Berry, 4 Burr. 2277. Abington v. Lipscomb, 11 L. J. (N. S.) Q. B. 15. Miles v. Williams, 9 Q. B. 47; S. C. 16 L. J. (N. S.) Q. B. 56. Griswold v. Hill, 1 Paine C. C. 483. Heathcote v. Wing, 11 Exch. 355. Freeman v. Tranah, 12 C. B. 406....