Lynn Gas & Elec. Co. v. Creditors' Nat. Clearing House

• Decision Date: 27 February 1920
• Citation: 235 Mass. 114,126 N.E. 364
• Parties: LYNN GAS & ELECTRIC CO. v. CREDITORS' NAT. CLEARING HOUSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 114

126 N.E. 364

LYNN GAS & ELECTRIC CO.

v.CREDITORS' NAT. CLEARING HOUSE.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1920.

Appeal from Municipal Court of Boston, Appellate Division.

Writ of review by the Lynn Gas & Electric Company against the Creditors' National Clearing House, resulting in finding for plaintiff. The matter, on the request of defendant, was reported to the Appellate Division of the Municipal Court of the City of Boston, which discharged the report for want of jurisdiction, and defendant appeals. Order discharging report affirmed.W. H. S. Kollmyer, of Boston, for appellant.

H. Ashley Bowen, of Lynn, for appellee.

RUGG, C. J.

This is a writ of review brought in the municipal court of the city of Boston. The judgment sought to be reviewed was entered in favor of the defendant in review, who was the plaintiff in an action of contract. Upon the trial of the writ of review the judge found for the plaintiff in review and at the request of the defendant in review reported certain questions of law to the appellate division of the municipal court, where the report was discharged for want of jurisdiction on the ground that appeal should have been taken to the superior court. The question presented is whether that ruling was correct.

[1][2] The writ of review of necessity must be brought in the court in which the judgment to be reviewed was rendered. R. L. c. 193, § 22; Yetten v. Conroy, 165 Mass. 238, 42 N. E. 1130. The plaintiff in review had no choice of court. He was compelled to resort to the municipal court of the city of Boston because in that court was rendered the judgment to be reviewed. It is provided by St. 1912, c. 649, § 2, as amended by St. 1914, c. 35, § 2, and chapter 409, that--

‘If, after this act takes effect, a party elects to bring in said municipal court of the city of Boston any action or other civil proceeding which he might have begun in the superior court, he shall be deemed to have waived a trial by jury and his right of appeal to the superior court.’

It is provided by section 3 of St. 1912, c. 649, that ‘no other party to such action shall be entitled to appeal,’ but right is given to remove the case to the superior court for trial by jury under stated conditions. The words ‘such action’ in this connection clearly mean the ‘action or other civil proceeding, which’ under the preceding section might at the election of the plaintiff have been brought in the superior court. These two sections leave unaffected the right of appeal from judgments of the municipal court of the city of Boston, given by R. L. c. 173, § 97, as amended by St. 1910, c. 534, § 1, in all cases where by compulsion of law and not by election the plaintiff brings his action or proceeding in the municipal court of the city of Boston. These two sections abolish the right of appeal from a judgment of the municipal court of the city of Boston to the superior court only as to such cases as the plaintiff might have elected to bring first in the superior court. They do not affect the right of appeal in other cases.

[3] Provision is made in section 8 of the act, as amended by St. 1914, c. 35, § 3, for an appellate division of the municipal court of the city of Boston. In that section occur these words:

‘Any party to a cause brought in said court after this act takes effect, who is aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division when the cause is otherwise ripe for judgment or sooner by consent of the justice hearing the same.’

While the words of section 8, authorizing report to the appellate division, standing alone, are broad enough to cover every ruling of law made by a judge, they must be read in connection with sections 2 and 8 as amended. So read in that context they are confined to such actions as the plaintiff might have elected to bring in the superior court but did choose to bring in the municipal court of the city of Boston. The jurisdiction of the appellate division under section 8 extends only to cases in which there is no right of appeal to the superior court. That is manifest from a consideration of the general purpose of said chapter 649, which is to prevent multiplicity of trials and to simplify procedure, and not to afford cumulative reviews and appeals.

[4] The fundamental inquiry in the case at bar, therefore, is whether the writ of error is ‘an action or civil proceeding’ which has an independent beginning and is separate and distinct from the action in which is the judgment to be reviewed, or whether it is a step of practice in the action to be reviewed. If it is the latter, there is no right of appeal, or removal at this stage, to the superior court and the only remedy for the correction of errors made by a single judge is by report ot the Appellate Division of the Municipal Court. Universal Optical Corporation v. Globe Optical Co., 228 Mass. 84, 116 N. E. 491. If it is the former, then it is ‘an action or civil proceeding’ as to the bringing of which in the municipal court of the city of Boston the plaintiff had no election but was under compulsion of law to institute in that court, and appeal lies to the superior court.

In this connection the point to be decided is whether the writ of review is a new and separate action or whether with the original action it constitutes one continuous and single proceeding. ‘A short statement of this singular process' known as a writ of review, as it was developed in 1811, is found in Swett v. Sullivan, 7 Mass. 342, 346, in these words:

‘The writ of review in civil actions is provided by statute, to correct errors in judgments rendered on verdicts, and is unknown at the common law. Either party, * * * may sue his writ of revies as of right, returnable to this court, from which it must issue, to correct the errors in fact of the judgment rendered on verdict. Upon the return of the writ, the whole cause is subject to revision on the former pleadings, and no amendments can be made, or any new issues joined; and the jury may find their verdict for the original defendant, or for the original plaintiff, with greater or less damages than he recovered at the former trial, whichever party shall sue the writ of review. By comparing the two verdicts, the error of the former verdict, if any, is apparent; and this error will be corrected by the judgment on the review.’

It is manifest that a process thus described is a new proceeding and...