Derick v. Taylor

• Decision Date: 23 June 1898
• Citation: 171 Mass. 444,50 N.E. 1038
• Parties: DERICK v. TAYLOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 444

50 N.E. 1038

DERICK v. TAYLOR.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1898

COUNSEL

Clarence W. Rowley, for appellant.

Chas F. Choate, Jr., for appellee.

OPINION

MORTON J.

At common law, the plaintiff could discontinue or become nonsuit, as of right, at any time before verdict, if not at any time before judgment. Washburn v. Allen, 77 Me 344; Judge v. Abbott, 13 N.H. 21; Benton v Bellows, 61 N.H. 107; Wooster v. Burr, 2 Wend. 295; Bank v. Schulenberg, 54 Mich. 49, 54, 19 N.W. 741; Keat v. Barker, 5 Mod. 208; Outhwaite v. Hudson, 7 Exch. 380; Co.Litt. 139 (a)(n); Bac. Abr. "Nonsuit" (D) 16 Am. & Eng.Enc.Law, 723. This resulted in part, at least, from the fact that anciently, unless the plaintiff continued the process regularly from day to day or from time to time, the proceedings came to a stop; that is, they were discontinued, and he was obliged to begin again. 3 Bl.Comm. 296. In part, it probably resulted from the objection to compelling a plaintiff to go on with a suit which, for some good reason, he did not wish to go on with,--Co. Litt. 139 (a),--and the difficulty of forcing him to appear. Generally speaking, he would be mulcted in some form for his failure to proceed, and, if he saw fit to submit to that burden rather than go on, he was permitted to do so. In this commonwealth, however, as well as in Maine and New Hampshire, and possibly in other states, it has been held that a plaintiff cannot discontinue or become nonsuit as of right after the trial has begun, but that he may discontinue or become nonsuit as of right at any time before the trial has begun. Haskell v. Whitney, 12 Mass. 47; Locke v. Wood, 16 Mass. 317; Shaw v. Boland, 15 Gray, 572; Inhabitants of Truro v. Atkins, 122 Mass. 418; Burbank v. Woodward, 124 Mass. 358; Kempton v. Burgess, 136 Mass. 192. These cases would seem to be decisive of the case at bar, unless there is a difference between a case originally entered in the superior court and one brought there by appeal from the municipal court of Boston. We discover no such difference. Appeals from the municipal court of Boston stand on the same footing as appeals from trial justices. Pub.St. c. 154, §§ 39, 43. In reference to those, it is provided that "the case shall be entered, tried and determined in the court appealed to in like manner as if it had been originally entered there." Pub.St. c. 155, § 28. It is plain, therefore, we think, that the plaintiff had the same right to discontinue which he would have had if the case had been entered in the superior court originally. The fact that the defendant had judgment in the municipal court is immaterial. The appeal vacated the judgment, and opened the whole case, to be dealt with in the appellate court as if it had been originally brought there, and the plaintiff could try it or discontinue it as he saw fit. Fels v. Raymond, 134 Mass. 376; Ball v. Burke, 11 Cush. 80; Gardner v. Railroad Co., 150 U.S. 349, 14 Sup.Ct. 140; Bank v. Schulenberg, 54 Mich. 49, 19 N.W. 741.

The filing of the written discontinuance operated ex propio vigore, and without anything more to discontinue the action. De Wolf v. Manufacturing Co., 12 R.I. 133. There is no statutory restriction of the right of discontinuance or nonsuit, except in the case of set-off. Pub.St. c. 168, § 21. In case a second suit is brought for the same cause of action before the costs of the nonsuit or discontinuance have been paid, the court may order it stayed till the costs are paid, and may order it to be dismissed if they are not paid within the time appointed. Pub.St. c. 198, § 13.

It is urged, however, that the statute not only requires that the appeal should be duly entered, but also that it should be prosecuted with effect, and that the discontinuance operated as a failure to comply with this provision, and gave the court power, on complaint of the adverse party, to affirm the former judgment. The appellant entered the appeal, and prosecuted it till the discontinuance, the effect of which was to entitle the appellee to judgment for his costs. The appellant, therefore, prosecuted the appeal with effect. Hobart v. Hilliard, 11 Pick. 143. If the statute had provided--as that, for instance, in regard to writs or review does--that the case should be prosecuted to...