Conto v. Silvia

• Decision Date: 08 January 1898
• Parties: CONTO v. SILVIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 152

49 N.E. 86

CONTO v. SILVIA.

Supreme Judicial Court of Massachusetts, Bristol.

January 8, 1898

This was a petition for a writ of error to reverse a judgment of the Second district court of Bristol, on the ground that, at the time of entering said judgment, plaintiff in error was a minor. The judgment was rendered in an action of replevin. The petition alleged that, at the time judgment was rendered, plaintiff in error had no guardian, and that no guardian ad litem was appointed. In the supreme judicial court the case was heard on the petition, exhibits, and the answer in nullo est erratum, and the express admission that the plaintiff in error was a minor at the time the judgment was rendered. The court ordered the entry to be "Judgment reversed," but afterwards, upon seeing Tufts v. Newton, 119 Mass. 476, doubted his power to do so, and also his power to vacate the decree. He reported the case to the full court.

COUNSEL

J.W Cummings and E. Higginson, for plaintiff in error.

H Ringrose, for defendant in error.

OPINION

FIELD C.J.

There is no doubt that the judgment should be reversed. Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234. Some doubt is expressed in the report whether the case on the pleading was within the jurisdiction of this court when held by a single justice. Tufts v. Newton, 119 Mass. 476, was tried by a single justice, who ordered the judgment of the superior court to be affirmed, and then reported the case to this court. The error assigned in Tufts v. Newton was that the judge of the superior court erred in disallowing the exceptions taken by the plaintiff in error at the trial of the original action in that court, because not presented to him within the time required by law, whereas the record showed that they were presented within the time required by law. The defendant in error did not appear in the supreme judicial court, and pleaded to the writ of error within 10 days after the return of the scire facias, and the plaintiff in error moved for a default; but the presiding justice extended the time for filing a plea, and the defendant in error pleaded in nullo est erratum, on which the case was tried by him, and he adjudged that the judgment of the superior court should be affirmed, and reported the case for the consideration of the full court. In the opinion the full court say: "Whether the judge erred in disallowing the exceptions was a matter of record, and could not be affected by oral evidence. Brown v. Bull, 3 Mass. 211; Fleming v. Clark, 12 Allen, 191. The question arising upon the record was an issue in law, which a single justice had no authority either to try or to reserve, but which is within the exclusive jurisdiction of the full court. Gen.St. c. 112, § 5. In the exercise of that jurisdiction, it is ordered that the judgment of the superior court be affirmed."

If the errors assigned are errors of law, and the plea is in nullo est erratum, and there are no other issues in the case, there seems to be no doubt that the case at once should be transferred to the docket of the full court. Pub.St. c. 150, § 7; Bailey v. Edmundson, 168 Mass. 297, 46 N.E. 1064. If the assignment is of errors of fact, and they are traversed, the issue must be tried before a single justice; and questions of law arising at such trial may be brought before the full court on exceptions or report, as in other trials at common law. Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234; Bragg v. Danielson, 141 Mass. 193, 4 N.E. 622; Packard v. Matthews, 9 Gray, 311; Goodridge v. Ross, 6 Metc. (Mass.) 487. The proceedings upon writs of error are "according to the course of the common law as modified by the practice and usage in this commonwealth, and by general rules made by the supreme judicial court." Pub.St. c. 187, § 15; Common-Law Rule 30, 24 Pick. 394. The effect of pleading in nullo est erratum to an assignment of errors of fact is said to be to admit the facts as assigned, if they are well assigned. In Riley v. Waugh, 8 Cush. 220, it is said in the opinion: "Matter of fact which contradicts the records is not assignable for error, and therefore the plea in nullo est erratum does not admit the truth of it. It is in the nature of a demurrer, and, like a demurrer, it admits the facts which are well pleaded. But it is often and properly filed when it is intended to insist, and in the present case does in fact insist, that the matter assigned is not legally assignable for error, and that the defendant in error ought not to be drawn into controversy respecting it." But, when the error of fact assigned is well assigned, the plea in nullo est erratum admits the fact. Bodurtha v. Goodrich, 3 Gray, 508, 512; 2 Tidd, Prac. (9th Eng.Ed.) p. 1173; Howe, Prac. 483 et seq.; Story, Pl. p. 371 et seq.; 1 Lev. 311; Hudson v. Banks, Cro.Jac. 28; Rex v. Gosper, Yel. 58. This rule seems not always to have been observed in this commonwealth, as cases are found in which in nullo est erratum was pleaded to an assignment of errors of fact; and issue was joined on the plea, and the facts were tried by a jury. See Goodrich v. Ross, ubi supra; Packard v. Matthews, 9 Gray, 311; Tufts v. Newton, ubi supra. In the present case the errors of fact were well assigned, and the plea in nullo est erratum must be taken to admit the facts assigned as error. The plea therefore raised an issue in law, and the question is whether such an issue is an issue in law, within the meaning of Pub.St. c. 150, § 7. Pub.St. c. 150, § 7, is derived, so far as this question is concerned, from Gen.St. c. 112, § 5, which was derived from Rev.St. c. 81, § 13, which was derived from St.1804, c. 105, § 6. But the issue in law raised in an assignment of errors of fact by the plea of...