Blanchard v. Ferdinand

• Decision Date: 03 March 1882
• Citation: 132 Mass. 389
• Parties: David H. Blanchard v. Jasper F. Ferdinand
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 389

David H. Blanchard v. Jasper F. Ferdinand

Supreme Court of Massachusetts

March 3, 1882

Suffolk. Contract on a poor debtor's recognizance. The bill of exceptions and a copy of the pleadings and docket entries showed the following facts:

At January term 1880 of the Superior Court, judgment was entered for the plaintiff on the defendant's default, and the defendant alleged exceptions, which were allowed. At July term 1880, the exceptions were waived, and the parties to the case signed an agreement that the case should be entered "neither party." This agreement was filed in court and entered of record, but "without any order of court." At January term 1881, namely, on February 23 the plaintiff's attorney filed a motion that the entry of "neither party" be stricken from the docket, and the agreement be stricken from the files of the court assigning two grounds for his motion: 1st. That there was no order of court for the entry of "neither party;" and 2d. That the agreement to make this entry was obtained by fraud. The defendant contended, at the hearing upon this motion, that no such motion was admissible, and that the court had no power to grant the motion. Allen J. ruled otherwise, ordered the entry of "neither party" to be stricken off and the action brought forward; and the defendant alleged exceptions.

Exceptions sustained.

E. M Bigelow, for the defendant.

C. F Loring, for the plaintiff.

OPINION

Lord, J.

The question before us is whether the Superior Court had the power to order the entry of "neither party" to be stricken from the record, and the action brought forward. How the parties were before the court on February 23, 1881, does not appear. Whether the defendant appeared voluntarily, or upon mere notice by the adverse party, or whether a petition had been presented to the court that he be summoned into court to meet such motion, does not appear; and we are therefore bound to assume that he was properly in court, and upon due proceedings and process, if in any mode he could be called upon at that time to answer such motion.

We know no way by which the defendant could be compelled to appear to answer such motion. That the court may alter its records to conform to the truth, at any time when the parties to be affected by such alteration are properly before it, cannot be denied. But when parties at some previous term have been before it, and their rights in such previous suit have been settled, there is no power in the court so to change its record of a previous suit which had been disposed of, in such manner as to change the rights of the litigants.

The phrase in the bill of exceptions, "without any order of court," is to be construed as meaning without a special order for that purpose, and not as meaning without authority from the court, or sanction by it. Formerly, when it was the custom to call the docket at the commencement of each term of the court in each county, in the larger counties hundreds of entries of this kind were made without any special order of the court. When an action was called, one or the other of the attorneys would answer "trial," "continue," "neither party," "default," "nonsuit," or make some other disposition of the case, which the clerk would enter upon the docket, and upon which no special order was made by the court except when the parties disagreed. A custom, almost universal, prevails of entering "N. P." or "neither party," when...