H.C. Miner Lithographic Co. v. Wagner

• Decision Date: 03 January 1901
• Citation: 177 Mass. 404,58 N.E. 1020
• Parties: H. C. MINER LITHOGRAPHIC CO. v. WAGNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 404

58 N.E. 1020

H. C. MINER LITHOGRAPHIC CO. v. WAGNER.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1901

COUNSEL

Thomas J. Barry and Walter A. Buie, for plaintiff.

Norman F. Hesseltine, for defendant.

OPINION

HOLMES C.J.

This is an action of contract, originally brought upon an account annexed, but amended in the municipal court by adding a count upon a judgment obtained in Philadelphia, before the beginning of this action, upon the same account. The latter count alone was relied upon when the case was tried on appeal in the superior court, and judgment for the plaintiff was ordered upon it. The case comes here on report, and presents the question whether the allowance of the amendment by the municipal court was reopened by the appeal of the plaintiff to the superior court from a final judgment for the defendant, no other appeal having been taken; and whether, if the question is open, the allowance was right. The judge ruled that, if the question was open, the amendment should be allowed. It is moved that the report be dismissed because the judge did not rule whether the question was open, and therefore, as it is said, found for the plaintiff on the judgment without determining whether the judgment was before him or not. But the ruling meant an order that the amendment should stand if an order was proper. If an order was not proper, the amendment was established. Either way the case was before him on the judgment.

We shall follow the course adopted at the trial, and shall not decide whether the appeal opened the right of the municipal court to allow the amendment. We have no doubt, other than that raised by a few decisions of other courts (McDermid v. Tinkham, 53 Vt. 615; Latine v. Clements, 3 Kelly, 426. See McVicker v. Beedy, 31 Me. 314 317; Anderson v. Mayers, 50 Cal. 525), that the amendment was within the powers given by Pub. St. c. 167, § 42. See section 85. The count expressly remitted the costs recovered in Philadelphia, and as to the residue of the claim the technical change to res judicata did not prevent its being 'the cause for which [the action] was intended to be brought,' in the large and popular sense in which those words are used in the sections cited above. King v Burnham, 129 Mass. 598; Henderson v. Staniford, 105 Mass. 504, 508; Goodrich v. Bodurtha, 6 Gray, 323; Barker v. Burgess, 3 Metc. 273; Downer v Shaw, 23 N.H. 125; Teberg v. Swenson, 32 Kan. 224, 4 P. 83; Thompson v. Minford, 11 How. Prac. 273.

Another question was raised by a plea of lis pendens, overruled in the municipal court, as to which the judge ruled that, if the matter was open, the plea should be overruled. Concerning this it is to be remarked that the plea was...