Dearborn v. Mathes

• Decision Date: 12 January 1880
• Citation: 128 Mass. 194
• Parties: David L. Dearborn v. Susan L. Mathes, administratrix
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 194

David L. Dearborn v. Susan L. Mathes, administratrix

Supreme Court of Massachusetts

January 12, 1880

Argued November 8, 1878

Essex. Petition, filed June 12, 1877, to the Superior Court for a writ of review of a judgment recovered in that court by the defendant in review against the plaintiff in review. Trial in the Superior Court, before Colburn, J., who allowed a bill of exceptions in substance as follows:

The original action, which was an action of contract to recover a sum alleged to be due from the defendant to the plaintiff's intestate, was commenced on May 18, 1876, and was duly entered at June term 1876. The defendant by his counsel duly appeared and answered. It was tried by the court without a jury, and a verdict was rendered for the plaintiff for $ 1728.83. At the time the action was commenced the plaintiff had not taken out administration on her intestate's estate in this Commonwealth, but was acting under letters of administration granted in New Hampshire. But this was not apparent on the face of the pleadings, and the defendant did not discover it until after trial and verdict. After verdict, the defendant filed a motion for a new trial setting forth, among other grounds, that no administration had been granted to the plaintiff in this Commonwealth, and notified the plaintiff's counsel of the filing of this motion, but by mistake failed to file with him a copy of the motion within four days after verdict, as required by law. The motion was for this reason overruled by the court, on May 26, 1877, without a hearing on its merits, and judgment was rendered for the plaintiff on June 11, 1877. After verdict and before final judgment, the plaintiff applied to the Probate Court of this county to be appointed administratrix of her intestate's estate in this Commonwealth, and she was duly appointed as such on September 25, 1876.

The plaintiff in review contended, and asked the judge to rule as follows: "1. The plaintiff in the original action not having taken out administration in this Commonwealth at the time of the commencement of the action, the proceedings and judgment in said action were and are absolutely void, and incapable of being remedied by waiver or otherwise. The petitioner is therefore entitled to a review as a matter of law. 2. The subsequent appointment of the plaintiff as administratrix, after verdict and before judgment, is immaterial, and does not render the proceedings and judgment in said action valid. 3. There was no waiver by the defendant of the defect in the proceedings." But the judge refused so to rule; and ruled, as contended by the defendant in review, that the defect in the proceedings in the original action, arising from the failure of the plaintiff to take out administration in this Commonwealth before the action was brought, was remedied by the subsequent appointment of the plaintiff as administratrix before final judgment in the action; and ordered the petition to be dismissed. The plaintiff in review alleged exceptions.

Exceptions overruled.

H. H Currier, for the plaintiff in review.

E. F Stone, for the defendant in review.

Gray C J. Endicott & Lord, JJ., absent....