Jordan v. Commissioners of Bristol Cnty.

• Decision Date: 10 September 1929
• Citation: 167 N.E. 652,268 Mass. 329
• Parties: JORDAN v. COMMISSIONERS OF BRISTOL COUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 329

167 N.E. 652

JORDAN

v.COMMISSIONERS OF BRISTOL COUNTY.

Supreme Judicial Court of Massachusetts, Bristol.

Sept. 10, 1929.

Report from Superior Court, Bristol County; M. Morton, Judge.

Petition by William F. Jordan for the assessment of damages for taking by eminent domain of property by County Commissioners of Bristol County. Verdict for petitioner. On report from superior court. Petition dismissed.H. C. Thorndike, of Brockton, for plaintiff.

E. R. McCormick, of Taunton, for defendants.

FIELD, J.

This is a petition for the assessment of damages for the taking by eminent domain by the respondents, the county commissioners of Bristol county, of a part of the premises of the petitioner, William F. Jordan, in Swansea, for the purpose of relocating the so-called Fall River-Seekonk Highway. Previously, on March 18, 1926, the petitioner brought a petition for the assessment of damages in which he named the commonwealth of Massachusetts as the respondent. The commonwealth appeared and answered, denying that it had ever taken any land of the petitioner. Thereafter the petitioner filed a motion in which he set forth that he had named erroneously the commonwealth of Massachusetts as the respondent, instead of the county commissioners of Bristol county, and moved that the petition be ‘quashed or abated in accordance with the provisions' of G. L. c. 79, § 17. The motion was allowed on March 5, 1928, and thereafter, on April 25, 1928, the present petition was filed. These respondents appeared, answered, and pleaded in bar the statute of limitations. The case was tried by a judge and a jury. The petitioner's evidence tended to prove that entry on the premises was made on September 15, 1925. At the close of the respondents' case they moved that a verdict be directed for them, for the reason that the petitioner had failed to bring his petition within the statutory period. This motion was denied and the respondents excepted. The jury found for the petitioner and assessed damages in the sum of $1,763.

By agreement of the parties the case was reported to this court. According to the terms of the report: ‘If the action of the court in refusing to direct a verdict for the respondents as requested was right, judgment should be entered for the petitioner for one thousand seven hundred and sixty-three ($1,763) dollars, with interest, and costs; otherwise, judgment for the respondents.’

The question for determination is whether this petition is barred by the statute. Since it did not appear to have been brought within one year after entry upon the premises, it was within the bar of the statute (G. L. c. 79, §§ 3, 16; McCarthy v. Simon, 247 Mass. 514, 519, 142 N. E. 806), unless that bar was removed by G. L. c. 79, § 17, which provides in part that, ‘if a person petitions for an award or assessment of his damages within the time limited by law, * * * and the petition is quashed, abated or otherwise avoided or defeated for any inaccuracy, irregularity or matter of form, * * * such petitioner * * * may begin such proceedings anew within one year after such abatement, reversal or other determination.’ According to the evidence the petition against the commonwealth was brought within one year after entry upon the premises, ‘the time limited by law.’ It failed, however, because it was brought against the wrong respondent. Was the petition, therefore, ‘quashed, abated or otherwise avoided or defeated for any inaccuracy, irregularity or matter of form’ within the meaning of the statute?

Provisions in limitation statutes somewhat similar to the provision now under consideration have been adopted widely (see Watterson v. Owens River Canal Co., 190 Cal. 88, 94,210 P. 265), and go back many years. See St. 21 Jac. I, c. 16, § 4 (1623-24). In this commonwealth, in addition to this provision (G. L. c. 79, § 17; see St. 1847, c. 181, § 2; St. 1918, c. 257, § 187, subsec. 17), there are provisions in connection with the general statute of limitations (G. L. c. 260, § 32; see Acts and Resolves of the Province of Massachusetts Bay, 1770-71, c. 9, § 3; St. 1793, c. 75, § 2), and in connection with the statute of limitations applicable to suits against executors and administrators (G. L. c. 197, § 12; see St. 1855, c. 157, § 1). These statutory pro isions, dealing with similar subjects as far as possible, should be interpreted so as to be harmonious. See Taft v. Stow, 174 Mass. 171, 174, 54 N. E. 506. They are to be construed favorably to the plaintiff or petitioner, in order to carry out the remedial purposes of the Legislature. Coffin v. Cottle, 16 Pick. 383, 385;Woods v. Houghton, 1 Gray, 580, 583;Cumming v. Jacobs, 130 Mass. 419.

The present statute (unlike the Virginia statute considered in Norfolk & A. Terminal Co. v. Rotolo, 103 C. C. A. 197, 179 F. 639) does not in terms apply to petitions which failed because brought against the wrong respondents. Unless the bringing of the petition against the wrong respondent was an ‘inaccuracy, irregularity or matter of form,’ the new petition is barred. These words have furnished the measure of the application of the part of the statute which is material here since it was enacted in 1847. Of this statute in an earlier codification Chief Justice Gray said in Fall River Railroad v. Chase, 125 Mass. 483, 484: ‘St. 1874, c. 372, § 80, * * * is limited to cases in which proceedings * * * have been quashed or defeated for informality.’ Doubtless the words ‘inaccuracy’ and ‘irregularity’ were inserted originally in order that the statute should not be limited through a narrow interpretation of the words ‘matter of form’ to cases which were defeated because of ‘the manner in which parties * * * state their particular claims or grounds of defense,’ but should apply to all failures for ‘informality of proceedings.’ See Allen v. Sawtelle, 7 Gray, 165, 166. The similar provisions in the other statutes in terms limit the bringing of new actions to cases where the old actions failed through informality, except so far as a new action is permitted specifically where the old action failed because of insufficient service or return of the writ, or the death of the defendant. See G. L. c. 197, § 12, c. 260, § 32. Thus failure of the first petition because of ‘matter of form’ liberally construed is essential to the removal of the statutory bar against the maintenance of the new...