Hale v. Wheeler

• Decision Date: 09 October 1928
• Citation: 163 N.E. 178,264 Mass. 592
• Parties: HALE et al. v. WHEELER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 592

163 N.E. 178

HALE et al.

v.WHEELER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 9, 1928.

Appeal and Exceptions from Superior Court, Worcester County; Henry T. Lummus, Judge.

Action by Marion G. Hale and others against Edmund W. Wheeler and others. From orders denying a motion to strike certain words from the rule to the auditor and refusing recommittal and ordering judgment and a judgment for defendants, plaintiffs appeal and file exceptions. Exceptions overruled and orders affirmed.

J. J. Shaughnessy, of Marlboro, for plaintiffs.

R. B. Dodge and A. T. Saunders, both of Worcester, for defendants.

WAIT, J.

The plaintiffs sue for damages resulting from the removal of themselves and their belongings from premises in Berlin. The defendants justify under executions for possession issued by a district court in summary processes for the recovery of land. The plaintiffs claimed trial to a jury by request indorsed upon their writ; but when the case was reached for trial in the superior court, their attorney agreed in open court that, with two other cases, it be referred to an auditor. Rule to the auditor issued on June 10, 1926, which set out ‘findings of facts to be final.’ On June 17, 1926, the plaintiffs moved that these words be stricken from the rule ‘because the plaintiffs do not agree that the findings of fact be final in said cases.’ The judge recited in his order denying the motion, that in open court and in his presence the plaintiffs, by their counsel, had agreed that the findings of fact should be final. The plaintiffs appealed from this order.

The auditor's report was filed on February 15, 1928, and on the next day, the defendants moved for judgment in their favor in accord with the report. The plaintiffs filed a motion to recommit and requested that issues be framed to a jury and the case ordered to a trial on the merits. After hearing, the motion and request of the plaintiffs were denied and judgment for the defendants was ordered to be entered with costs. The plaintiffs appealed from the orders refusing recommittal and ordering judgment. They also present their bill of exceptions to the foregoing denials of their motions, and to the allowance of the order for judgment. The record transmitted sets out the report of the auditor.

[2] We find no error in the record or in the matter excepted to.

In Moulton v. Bowker, 115 Mass. 36, 40,15 Am. Rep. 72, with ample citation of authority, Chief Justice Gray stated as the law that:

‘An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court, necessary or incidental to the prosecution and management of the suit, and which affect the remedy only, and not the cause of action.’

It is manifest that no tribunal, where parties appear by attorney at law, could proceed safely or conveniently under any practice which permitted the party to disavow what has been done in his behalf in open court. The attorney may be liable to his client if he has acted to his prejudice without authority; but the orders of the court and the rights of the other parties cannot be affected.

The method of trial is a matter of the remedy and not of the cause of action. No right of the plaintiffs was infringed by the denial.

There was, of course, no error in denying the requests for issues and for trial to a jury, if the agreement that the auditor's findings of fact was not set aside. No occasion for either existed.

There is no merit in the contentions that the defendants were not justified by the writs under which they were acting. The defendants Wheeler and Sawyer were the purchasers at a foreclosure sale of lands in Berlin mortgaged by the plaintiff Nancy S. Hale and her husband (since deceased) by a deed recorded with Worcester Deeds, Book 2124, p. 302. After the sale Nancy S. Hale with her children, the plaintiffs, George, Charles and Marion, continued in possession...