Guild v. Bonnemort

• Decision Date: 22 June 1892
• Parties: GUILD v. BONNEMORT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 522

31 N.E. 645

GUILD v. BONNEMORT.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1892

COUNSEL

E. Greenhood, for plaintiff.

J.E Cotter and W.M. Stockbridge, for defendant.

OPINION

LATHROP, J.

This is an action of tort for personal injuries, and is therefore a transitory action. The writ describes the plaintiff as "residing" at Boston, in the county of Suffolk, and the defendant as of Dedham, in the county of Norfolk. The defendant filed three pleas, called "pleas in abatement." The justice of the superior court who heard the case found against the defendant on the second and third pleas, but on the first plea decided in his favor, and ordered the action abated. The first plea, which is the only one now before us, sets forth that the plaintiff, at the time of the commencement of the action, was not a resident of Boston, and had no place of business in Suffolk county, but was a resident of Dedham, in the county of Norfolk, and prays that the writ be abated. The judge found as facts that the plaintiff was a married woman that at the date of the writ her husband lived in Dedham, and had his domicile there; that, before bringing the action, the plaintiff, in consequence of trouble with her husband, had left him, with the intention of never returning, and had gone to Boston, with the intention of making her home there in the future, and had made it there, with a married daughter, ever since. Upon these facts, the judge ruled that the plaintiff lived where her husband lived; and refused to rule, as requested by the plaintiff, that she lived in Boston. The plaintiff seeks to bring this question of law before us by a bill of exceptions, but we are of opinion that we cannot entertain the question. Under Pub.St. c. 152, § 10, and Id. c. 153, § 8, the decision of a justice of the superior court upon a plea in abatement is final, whether the question be one of law or fact. The cases so holding are cited in Young v. Steamship Co., 150 Mass. 550, 554 23 N.E. 579. See, also, Bank v. Johnson, (Mass.) 29 N.E. 59. This has been the law of this commonwealth since 1840. St.1840, c. 87, §§ 4, 5; St.1855, c. 449, §§ 5, 6; St.1859, c. 196, §§ 26, 27; Gen.St. c. 114, § 10; Id. c. 115, § 7. The plaintiff, however, contends that, although the plea in this case is in form a plea in abatement, it is really a plea to the jurisdiction; and it is undoubtedly true, as stated by Mr. Justice W. ALLEN, in Allen v. Lumber Co., 150 Mass. 560, 563, 23 N.E. 581, that, "whether the answer is in abatement must depend upon the substance, and not upon the form, of it." In that case it was held that an action of tort for breaking and entering the plaintiff's close, in another state, could not be brought here by a trustee process under Pub.St. c. 183, §§ 1, 3; and that an appeal would lie to this court from the judgment of the superior court upon an answer in the form of a plea in abatement. But, as was stated in the opinion in that case, the objection there was not that an action of which the court had jurisdiction was brought in the wrong county, but that the court had not jurisdiction of the cause of action. Section 1, c. 161, Pub.St., is as follows: "Transitory actions, except in cases in which it is otherwise provided, if any one of the parties lives in the commonwealth, shall be brought in the county where some one of them lives or has his usual place of business; and, if brought in any other county, unless transferred under section 12, the writ shall abate, and the defendant shall be allowed double costs. If neither party lives in the commonwealth, the action may be brought in any county." Section 12 provides that when it appears that the action is brought in the wrong county, "the court, on motion of either party, may order the same, with all papers relating thereto, to be transferred to the proper county, upon such terms to the defendant as the court may deem reasonable." Section 1, with the exception of the last sentence, has, in substance been the law of this commonwealth since 1784. St.1784, § 13; Rev.St. c. 90, § 14; St.1854, c. 322, § 1; St.1855, c. 12; St.1856, c. 70; Gen.St. c. 123, § 1. The words, "the writ shall abate," which were first used in the General Statutes, or the words "the writ shall be abated,"...