Chandler v. Dunlop

• Decision Date: 24 February 1942
• Citation: 39 N.E.2d 969,311 Mass. 1
• Parties: CHANDLER v. DUNLOP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 1

39 N.E.2d 969

CHANDLER

v.DUNLOP.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 24, 1942.

Report from Superior Court, Suffolk County; F. W. Fosdick, Judge.

Action of tort by Margaret B. Chandler against Cassie Dunlop, administratrix, to recover for injuries sustained in an automobile collision. The Superior Court granted defendant's motion to dismiss and in effect sustained defendant's plea in abatement and reported the case to the Supreme Judicial Court.

Judgment for defendant.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and RONAN, JJ.

H. L. Barrett, of Boston, for plaintiff.

R. J. Dunn, of Boston, and J. J. Kerwin, of Lowell, for defendant.

FIELD, Chief, Justice.

Margaret B. Chandler attempted, as plaintiff, to bring an action of tort in the Municipal Court of the Dorchester District of Boston. The writ named Harry B. Dunlap as defendant. It was dated April 6, 1939, and returnable April 22, 1939. The officer's return dated April 8, 1939, recites service at the ‘last and usual place of abode’ of said Dunlap. The declaration alleged negligent operation of a motor vehicle by the defendant on or about May 9, 1938, resulting in injury to the plaintiff. An answer was filed in the Municipal Court purporting to be the answer of the defendant by his attorney. Subsequently a motion purporting to be a motion of the defendant by his attorney ‘for leave to withdraw his appearance and answer and to file a plea in abatement late’ was allowed in said Municipal Court, and on the day on which the motion was allowed a ‘plea in abatement’ was filed purporting to be by the defendant by his attorney, on the ground that ‘at the time of the commencement of this action the defendant was deceased, he having died September, 1938, approximately seven months before this action was commenced.’ This ‘plea in abatement’ was sustained in the Municipal Court on January 15, 1940, and on the same date a motion of the plaintiff was allowed in the Municipal Court that ‘said action’ be amended ‘by striking out the name ‘Harry B. Dunlap’ whereever the same appears in the writ and declaration and substituting in lieu thereof as a defendant ‘Cassie Dunlop of Boston, Suffolk County, Massachusetts, as she is administratrix of the estate of Harry Bickford Dunlop, also known as Harry B. Dunlap,’' and that ‘suitable process be ordered to issue from this court for service upon said Cassie Dunlop as administratrix as aforesaid.’ By a later amendment said Cassie Dunlop was described as ‘of the Dorchester District in Boston.’ Process was issued and served upon said Cassie Dunlop in hand. Thereafter, on March 23, 1940, the case was entered in the Superior Court.

In the Superior Court, said Cassie Dunlop by her attorney-who had previously purported to appear for Harry B. Dunlap-field a so called ‘motion to dismiss' and a so called ‘plea in abatement’ in substantially identical terms, seeking respectively that the plaintiff's writ be dismissed or that it be abated, based on the allegations that ‘her intestate died September 4, 1938, and that on September 23, 1938, she was appointed administratrix of the estate of the said intestate, and gave notice of her appointment as required by law and as ordered by the Probate Court; that she gave bond on September 28, 1938, and this bond was approved on September 29, 1938; that the plaintiff's alleged cause of action arose on May 9, 1938, as a result of a collision between an automobile owned and operated by the said intestate and an automobile in which the plaintiff was riding; that thereafter the plaintiff brought suit against the said intestate by a writ dated April 6, 1939, which was returnable in the Municipal Court of the Dorchester District on April 22, 1939; that the said writ was served by leaving at the last and usual place of abode of the intestate, namemly, 201 East Cottage Street, Dorchester; that the said intestate was dead at the time; that the summons left at the last and usual place of abode was sent to the insurer of the automobile belonging to the intestate; that counsel provided by said insurer appeared and answered in said action on behalf of the intestate, in ignorance of the fact that he was at said time dead; that on January 15, 1940, a motion to substitute the defendant as administratrix of said estate as defendant in the action filed by the plaintiff was allowed and that process was then issued and served upon the defendant in hand; that the time for the issuance of such process had elapsed and the plaintiff is barred from bringing suit against the defendant, by reason of General Laws (Ter.Ed.) Chapter 197, Section 9.’

The ‘motion to dismiss' and the ‘plea in abatement’ were heard by a judge of the Superior Court upon an agreement of the parties that ‘all allegations of fact and all references to matters of record (but not conclusions of law) set out in the motion and plea were true.’ The judge made various rulings of law, granted the ‘motion to dismiss,’ and, in effect, sustained the ‘plea in abatement,’ and, at the request of the plaintiff, reported the case to this court, ‘such order or judgment to be entered in the case as justice may require.’ G.L.(Ter.Ed.) c. 231, § 111.

Since the action that the plaintiff attempted to bring was an action ‘of tort arising out of the operation of a motor vehicle,’ the Superior Court had no original jurisdiction thereof. Exclusive jurisdiction of such actions is in the District Courts, of which the Municipal Court of the Dorchester District is one. G.L.(Ter.Ed.) c. 218, § 19, as amended by St.1934, c. 387, § 1. Such a case could reach the Superior Court only by removal thereto under G.L.(Ter.Ed.) c. 231, § 102A, as appearing in St.1938, c. 338, § 1, or under G.L.(Ter.Ed.) c. 231, § 104. See now St.1941, c. 203. The record does not show how this action reached the Superior Court, but shows merely that it was entered there. Since on the facts appearing in the record it would have been possible for the action to have been so removed, and the Superior Court dealt with the action as if it had been properly removed to that court, we treat the case on that basis. When an action is so removed, it is to proceed in the Superior Court as though ‘originally entered there.’ G.L.(Ter.Ed.) c. 231, §§ 102A, 104. The jurisdiction of the Superior Court is as extensive as if the case had been first entered in that court. Thayer v. Shorey, 287 Mass. 76, 80, 191 N.E. 435, 94 A.L.R. 307.

Since the matter set up in the defendant's substantially identical pleadings, described differently, in the Superior Court, includes matter not apparent on the record, the case is not to be determined on the ‘motion to dismiss' (Crosby v. Harrison, 116 Mass. 114, 117;Johnson v. Johnson, 303 Mass. 204, 206, 21 N.E.2d 224), but must be determined on the ‘plea in abatement.’

The matter set up in the ‘plea in abatement’ is, in part, that the amendments to the writ and declaration were improperly allowed and, in part, the short statute of limitations. G.L.(Ter.Ed.) c. 197, § 9, as amended. See St.1933, c. 221, § 4. Such amendments to a writ and a declaration can be allowed without the substituted defendant having notice and an opportunity to be heard. But such a substituted defendant cannot be brought into court without process, and, upon being brought into court by process, he has ‘the right to contest the power of the court as matter of law to allow the amendments under the statute and proper practice.’ Johnson v. Carroll, 272 Mass. 134, 137, 172 N.E. 85, 87, 69 A.L.R. 1244. The administratrix, therefore, may raise the question of the power of the court to allow the amendments here involved. Furthermore, though the defence of the statute of limitations may properly be pleaded in bar to the action in an answer to the writ, it has been intimated that it may also be pleaded in abatement. Means v. Leveroni, 297 Mass. 61, 64, 7 N.E.2d 418. See also Whiton v. Balch, 203 Mass. 576, 89 N.E. 1045;White v. E. T. Slattery Co. 236 Mass. 28, 30, 31, 127 N.E. 597. Since, however, no question of pleading in the Superior Court has been raised by the plaintiff, without further discussion of matters of pleading, we deal with the ‘plea in abatement’ as presenting the questions thereby sought to be raised, considered by the judge of the Superior Court and reported by him for our determination.

No action was brought at the date of the writ. The only person therein named as defendant was dead. Though the cause of action survived his death, obviously he could not be sued thereon after his death. The action was, in truth, brought against nobody, the purported service upon the person named in the writ as defendant at ‘his last and usual place of abode’ was a nullity, and the appearance and answer in the Municipal Court purporting to be in his behalf by his attorney could not bring him into court as a defendant. Bateman v. Wood, 297 Mass. 483, 485, 9 N.E.2d 375. Such attorney could have had no authority to appear and answer for him, since, of course, such authority ended with his death. Barnes v. Barnes, 291 Mass. 383, 385, 196 N.E. 917;Noyes v. Bankers Indemnity Ins. Co., 307 Mass. 567, 570, 30 N.E.2d 867.

The action might have been brought against the administratrix of the person named in the writ as defendant. G.L.(Ter.Ed.) c. 230, § 1. Bateman v. Wood, 297 Mass. 483, 485, 9 N.E.2d 375. However, she was not so named, nor was she served. Whether the administratrix, though not named in the writ as defendant, by appearing generally or answering to the merits would have lost the right to object to lack of proper service or to the maintenance of the action against her as defendant, need not be considered. She did not so appear or answer. The attorney ‘provided’ by ‘the insurer of the automobile belonging to the intestate’ ‘appeared and answered in said action on behalf of the intestate, in ignorance of the fact that he was * * * dead.’ This attorney, being ignorant of the fact of...