Hubon v. Bousley
| Decision Date | 09 November 1877 |
| Parties | Henry G. Hubon v. Joseph Bousley |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Essex. Petition to the Superior Court, under the St. of 1875, c. 33 to vacate and review a decree of that court, establishing a mechanic's lien on a building and land, and ordering the same to be sold to satisfy the lien, upon a petition inserted in a writ of original summons, sued out by the respondent against the petitioner under the Gen. Sts. c. 150.
At the hearing in the Superior Court of this petition for a review it was admitted that no sale had been made under that decree. Gardner, J., ruled that the decree was not a judgment in a civil action and could not be reviewed under the provisions of the Gen. Sts. c. 146; and that, for the same reason, it could not be vacated, and the case brought forward on the docket to be tried, under the provisions of the St. of 1875 c. 33; and therefore, without considering the merits of the petition, declined to grant it. The petitioner alleged exceptions.
Exceptions sustained.
S. Lincoln, Jr., for the petitioner, was stopped by the court.
N. J. Holden, for the respondent.
A writ of review, under the statutes of the Commonwealth, may be granted of a final judgment in any civil action commenced by writ. It was because the proceedings were not commenced by writ, that a review was denied in the cases, cited for the respondent, of awards upon submissions before a justice of the peace, judgments upon petitions for partition, and decrees of probate or divorce. Dickenson v. Davis, 4 Mass. 520. Stone v. Davis, 14 Mass. 360. Borden v. Brown, 7 Mass. 93. Pope v. Pope, 4 Pick. 129. Lucas v. Lucas, 3 Gray 136.
In an action commenced by writ, it is no objection to granting a review that the pleadings are not in the same form as in ordinary actions at law, or that no trial by jury is had; as, for instance in the case of a judgment in trustee process, charging or discharging a trustee upon his answer. Bowditch Ins. Co. v. Winslow, 3 Gray 415, 425. Fuller v. Storer, 111 Mass. 281, 283. In Beale v. Churchill, Norfolk, February term 1845, Mr. Justice Wilde granted a writ of review, under the Rev. Sts. c. 99, of a decree rendered by the Court of Common Pleas upon a bill in equity for the redemption of a mortgage, which had been inserted in a writ of original summons, as allowed by the Rev. Sts. c. 90, § 117. We are not certain whether the point was brought before the full court, but the opinion of that eminent judge is of itself, from his long experience and great knowledge of the law of Massachusetts, of much weight upon such a question. [*]
A mechanic's lien on buildings and land is enforced by petition to the Superior Court, which is a court of...
To continue reading
Request your trial
-
Manchester v. Popkin
...cannot be brought. See G. L. c. 231, §§ 31, 141. The procedure is that prevailing at law. Corbett v. Greenlaw, 117 Mass. 167;Hubon v. Bousley, 123 Mass. 368:Nantasket Beach Railroad v. Bansom, 147 Mass. 240, 17 N. E. 640. In substance and effect the proceeding as it now stands is that the p......
-
Manchester v. Popkin
... ... See G.L.c ... 231, Sections 31, 141. The procedure is that prevailing at ... law. Corbett v. Greenlaw, 117 Mass. 167 ... Hubon ... v. Bousley, 123 Mass. 368 ... Nantasket Beach Railroad ... v. Ransom, 147 Mass. 240 ... In substance and ... effect the ... ...
-
Nantasket Beach R. Co. v. Ransom
...are reviewable, are those of award upon submission to referees, petitions for partition, decrees of probate, or divorce. See Hubon v. Bousley, 123 Mass. 368. The absence of a writ was not the ground of decision in Dickenson v. Davis, 4 Mass. 520. The real reason was that the cause was not “......
-
Nautasket Beach R. Co. v. Ransom
...are reviewable, are those of award upon submission to referees, petitions for partition, decrees of probate, or divorce. See Hubon v. Bousley, 123 Mass. 368. The absence of writ was not the ground of decision in Dickenson v. Davis, 4 Mass. 520. The real reason was that the cause was not "tr......