Browne v. Browne
| Citation | 215 Mass. 76,102 N.E. 329 |
| Parties | BROWNE v. BROWNE. |
| Decision Date | 27 May 1913 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Choate, Hall & Stewart L. R. Chamberlin and Samuel Vaughan, all of Boston, for demandant.
John S Richardson and J. M. Browne, both of Boston, for defendant.
This is a writ of entry brought in the superior court in 1909. Thereafter that court ordered it transferred to the land court under St. 1911, c. 433. The first question is: Which court has jurisdiction? This depends upon the construction of St. 1904, c. 448, to the effect that the jurisdiction of 'writs of entry, under the provisions of chapter 179' of Rev. Laws, is transferred from the superior to the land court. It appears from the record that the demandant's title rests upon the levy of an execution on lands belonging to one Merrill H. Browne, the record title of which stood fraudulently in the name of the tenant. R. L. c. 178, § 47 enacts that in such case the levy shall be void unless an 'action to recover possession' of the land is begun within one year from the return day of the execution. Such 'action' is a writ of entry in the ordinary form. Clark v. Chamberlain, 13 Allen, 257, 260. It plainly is within the terms of R. L. c. 179. Therefore jurisdiction of the action was in the land court and not in the superior court at the time it was brought. Congregational Society v. Metcalf, 193 Mass. 288, 79 N.E. 343.
It was property transferred to the land court under St. 1911, c 433, section 1 of which provides that, 'if an action has been brought in the superior court which ought to have been brought in the land court, * * * the court may * * * order the action * * * transferred to the [land court] * * *; and it shall thereupon be entered and prosecuted as if it had been commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be valid.' This relates merely to procedure. It is in furtherance of a policy frequently exemplified in legislative acts to enable a party who has brought a cause seasonably to try it upon its merits, notwithstanding defects in the form or substance of pleadings, or error in the remedy asked, or mistake in the tribunal invoked, rather than to compel him to begin it anew. George v. Reed, 101 Mass. 378.
The statute at bar is well within principles established by this court, and is constitutional. Wilson v. Head, 184 Mass. 515, 69 N.E. 317; Rogers v. Nichols, 186 Mass. 440, 71 N.E. 950; Converse v. Ayer, 197 Mass. 443, and cases cited at 454, 84 N.E. 98; Adams v. Adams, 211 Mass. 198, 97 N.E. 982; Ewell v. Daggs, 108 U.S. 143, 2 S.Ct. 408, 27 L.Ed. 682. It falls far short of some statutes which have been held valid, although they have been thought to go to the verge. See, for example, Dunbar v. Boston & Prov. R. R., 181 Mass. 383, 63 N.E. 916. Where a plaintiff has not slept upon his rights, but has mistaken the jurisdiction of the tribunal to which he has appealed, no constitutional right is impaired by permitting the court in which the action wrongly was brought to transfer it to the one having power to adjudicate upon it.
The terms of the statute under which the transfer was made to the land court required the procedure to be 'as if it had been commenced therein.' This fixes the date of the writ for the ascertainment of the procedure to be followed in the land court. Hence, this writ having been brought in 1909, St 1904, c. 448, governs, and not St. 1910, c. 560 which in section 8 exempts 'pending causes' from its operation. The case at bar was 'pending' i...
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