Hall v. Hall

• Decision Date: 24 November 1908
• Citation: 200 Mass. 194,86 N.E. 363
• Parties: HALL v. HALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 194

86 N.E. 363

HALL v. HALL.

Supreme Judicial Court of Massachusetts, Bristol.

November 24, 1908

COUNSEL

David

F. Slade, for appellant.

Frank A. Pease, for appellee.

OPINION

MORTON J.

This action was brought in the Second district court of Bristol the jurisdiction of which is limited to one thousand dollars. The ad damnum of the writ was $500, and the declaration which was for money had and received, alleged that the defendant owed the plaintiff $400. Subsequently the plaintiff was allowed in that court to amend her writ by making the ad damnum $1,000 instead of $500 and to amend her declaration by substituting $1,000 for $400. Judgment was rendered in the district court in favor of the plaintiff for the sum of $379.60 and costs of suit, and the defendant appealed therefrom. In the superior court the case was sent to an auditor, who found in favor of the plaintiff in the sum of $1,032.13 and interest from August 4, 1905, the date of the writ. Before the auditor's report was filed, the plaintiff moved in the superior court to increase the ad damnum from $1,000 to $2,000. This motion was allowed, and the defendant appealed from the allowance of it. The case was subsequently heard by the court without a jury, and the court found in favor of the plaintiff and assessed the damages in the sum of $1,209.66.

The sole question is whether the superior court had power to allow the amendment increasing the ad damnum from $1,000 to $2,000. We do not think that it had. The jurisdiction of the superior court was wholly appellate, and it could only render such judgment and try such issues as the court appealed from could have rendered and tried. Kelley v. Taylor, 17 Pick. 218, 221. It is clear that if the ad damnum of the writ as entered in the district court had been $2,000 the case would have been beyond the jurisdiction of that court. Ashuelot Bank v. Pearson et al., 14 Gray, 521; Ladd, Ad'm, v. Kimball et al., 12 Gray, 139. That court could no doubt have allowed an amendment reducing the ad damnum so as to bring the case within its jurisdiction, but in the absence of such an amendment any judgment rendered by it would have been void. Hart v. Waitt, 3 Allen, 532. The case in the appellate court is a mere continuation of the original case and, though amendments may be allowed in the appellate court (Rev. Laws, v. 173, § 23; Fels v. Raymond et al., 134 Mass. 376), the amendments must be such, so far at least as they affect the question of jurisdiction, as could have been made in the court whose judgment is appealed from. See as supporting the general doctrine that an appeal is merely a continuation of the original case, Union Pac. Ry. v. Ogilvy, 18 Neb. 638, 26 N.W. 464, and Bickett v. Garner, 21 Ohio St. 659.

The plaintiff contends that the superior court had power to allow the amendment under Rev. Laws, c. 173, § 97, which provides, with certain exceptions, not now material that, after an appeal from 'the judgment of a police, district or municipal court or trial justice in a civil action' has been entered in the superior court, the case 'shall be there tried and determined as if it had been originally commenced there.' But the object of this provision is simply to enable parties to have their rights determined in the appellate court without regard to any judgment or determination that may have been rendered in the court below. Lew v. City of Lowell, 6 Allen, 25, 27; Ball v. Burke, 11 Cush. 82. The right of appeal is wholly a statutory right and without some such provision as that referred to parties would be confined to the issues and evidence presented in the court below. That this is the true construction of the statute is also shown, we think, by its history. See St. 1697, pp. 282, 283, c. 8, §§ 1, 2; 1 Acts & Resolves, Province Massachusetts Bay, 282; St. 1783, p. 608, c. 42, § 6; St. 1826, p. 152, c. 89,§ 2; Rev. St. 1836, c. 85, § 13; Id. c. 87, § 36; Gen. St. 1860, c. 120, § 25; Id. c. 116, § 32; Pub. St. 1882, c. 155, § 28; Id. c. 154, § 39; St. 1893, c. 396, § 24; Rev. Laws, c. 173, § 97.

The construction contended for by the plaintiff would require us to import...