Kerr v. Whitney

• Decision Date: 18 May 1916
• Citation: 112 N.E. 609,224 Mass. 120
• Parties: KERR v. WHITNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 120

112 N.E. 609

KERR

v.WHITNEY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1916.

Exceptions from Supreme Judicial Court, Suffolk County.

Suit in equity by Walter Raleigh Kerr against Henry M. Whitney, commenced in the Supreme Judicial Court. Demurrer to the bill sustained, and plaintiff allowed to amend into an action at law, for breach of contract, and defendant excepts. Order allowing amendment affirmed.Channing & Frothingham and John P. Jackson, Jr., all of Boston, for plaintiff.

Whipple, Sears & Ogden, of Boston, for defendant.

RUGG, C. J.

This litigation was commenced as a suit in equity in the Supreme Judicial Court for Suffolk county. A demurrer to the bill on the ground, among other things, that there was a plain, adequate and complete remedy at law, was sustained. Thereupon the plaintiff, against the objection and subject to the exception of the defendant, was allowed to amend his bill into an action at law for breach of contract.

The allowance of this amendment was strictly within the power conferred by R. L. c. 173, § 52. It is contended that this power no longer rests with the Supreme Judicial Court by reason of St. 1905, c. 263, which repealed so much of R. L. c. 156, § 5, as conferred original jurisdiction upon that court over certain actions in contract or replevin. St. 1909, c. 33, enabled that court to order the removal of any action of contract or replevin pending before it to the superior court for trial. St. 1911, c. 275, amended R. L. c. 173, § 52, so as to make it permissive instead of mandatory for the court allowing an amendment from equity into law to retain jurisdiction of the cause.

The result of these statutes is to leave with the Supreme Judicial Court power to amend a cause from equity into law. The advantages of a generous jurisdiction to allow amendments changing the form of action, in order that a trial may be had upon the merits notwithstanding errors in the commencement or pleadings, are obvious. It is not unusual that in this way alone can the bar of the statute of limitations be avoided. The power has been freely exercised in order to simplify procedure, obviate delay and prevent a miscarriage of justice. Browne v. Browne, 215 Mass. 76, 102 N. E. 329;Day v. Mills, 213 Mass. 585, 100 N. E. 1113, and cases cited. It is not likely that the Legislature consciously intended to curtail this salutary power. R. L. c. 173, § 52, has not been narrowed, but on the contrary one and...