Guarino v. Russo
| Decision Date | 24 May 1913 |
| Citation | 215 Mass. 83,102 N.E. 128 |
| Parties | GUARINO v. RUSSO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm.
R. Buckminster and John E. Crowley, both of Boston, for plaintiff.
John Lowell and Kenneth Howes, both of Boston, for defendant.
The decisive question presented in this case is whether an action of tort begun by trustee process can be amended by striking out the portions of the writ which make it trustee process so as to enable it to be maintained for malicious prosecution. The determination involves a construction of statutes. There is no inherent or constitutional reason why such amendments cannot be allowed. The only inquiry is whether the Legislature permits such amendments. R. L. c 189, § 1, provides that 'all personal actions, except actions of tort for malicious prosecution, for slander or libel or for assault and battery and actions for replevin may be commenced by the trustee process.' This language is an unequivocal prohibition against the commencement of an action for malicious prosecution by trustee process. It has been the continuous statute of the commonwealth touching actions of this sort since St. 1794, c. 65, § 1. See Rev. St c. 109, §§ 1, 17; Gen. St. c. 142, §§ 1, 75; Pub. St. c. 183, § 1; R. L. c. 173, § 48, which authorizes the allowance of any 'amendment in matter of form or substance * * * which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or which may enable the defendant to make a legal defense,' must be interpreted in the light of this express inhibition. Within its field the statute permitting amendments is given a broad and liberal interpretation; but it cannot override other equally clear statutes. The commencement of an action means prima facie the date of the writ. Gardner v. Webber, 17 Pick. 407, 412. Subsequent amendments adding new counts are allowable to enable the plaintiff to sustain the cause of action for which he intended to bring his writ, and the allowance of an amendment by the trial judge conclusively establishes the existence of that initial intent. R. L. c. 173, § 121; Tracey v. Boston & Northern St. Ry. Co., 204 Mass. 13, 90 N.E. 416. Therefore the situation is that the plaintiff commenced his action by trustee process, then intending to include within its scope an action for malicious prosecution, although the count setting out this ground was added later. The explicit prohibition of the statute...
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