Merrill v. Beckwith

• Decision Date: 27 February 1897
• Parties: MERRILL et al. v. BECKWITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 72

46 N.E. 400

MERRILL et al. v. BECKWITH.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1897

COUNSEL

Stetson & Stetson, for plaintiffs.

J.L Thorndike, for defendant.

OPINION

FIELD C.J.

This suit was originally a bill in equity for the specific performance of a contract on the part of the defendant to purchase land. The bill was inserted in a writ of summons and attachment, on which an attachment of real property was made but there was no service of a summons upon the defendant personally within the commonwealth, and the defendant was described in the writ as of "the city, county, and state of New York." The defendant moved to dismiss the suit for want of sufficient service, and on October 23, 1894, a single justice of this court granted the motion, the entry on the docket being as follows: "Bill dismissed." On October 30, 1894, the plaintiffs appealed from this order to the full court, which on May 24, 1895, sent down a rescript as follows: "Ordered that the clerk of said court in said county make the following entry under said case in the docket of said court, viz.: Bill dismissed, with costs." And this entry was made on the docket of the court sitting for the county. See Merrill v. Beckwith, 163 Mass 503, 40 N.E. 855. On May 31, 1895, the plaintiffs filed in the court sitting for the county the following motion: "And now come the plaintiffs, after the rescript from the full bench, and before final judgment or decree therein, and move that the above-entitled proceeding in equity be changed to an action at law." This motion was granted upon terms on June 18, 1895, and the defendant appealed to this court. The justice who granted the motion reports the following facts among others, viz.: "The plaintiffs desired to convert the suit into an action for damages for breach of the contract, and thereby to preserve the attachment as security for the judgment they might recover, alleging that subsequent attachments had been made by other persons. The defendant moved that execution issue for costs. Both motions were heard before me, and I gave the plaintiffs leave to amend as prayed, on payment of costs. The defendant having appealed from this order, I make this report of the facts." The order of the single justice is as follows: "I am of opinion that the rescript and the execution by the clerk of the order contained in the rescript do not constitute a final decree, within the meaning of our law and practice. I therefore think the plaintiffs should be permitted to amend the suit into an action at law, upon payment of the costs of the defendant to the present time. It is so ordered."

Amendments may be allowed, at any time before final judgment, changing an action at law into a suit in equity, or a suit in equity into an action at law. Pub.St. c. 167, §§ 42, 43; St.1883, c. 223, § 17. If this had been an action at law originally, an order permitting it to be amended into a suit in equity, under the circumstances stated, would have been within the discretion of the presiding justice. Terry v. Brightman, 133 Mass. 536; Gray v. Cook, 135 Mass. 189; Gale v. Nickerson, 144 Mass. 415, 11 N.E. 714. We infer that a decree dismissing the bill, or dismissing the bill with costs, never was formally drawn up and signed either by a justice of the court or by the clerk, and that such a decree was never extended in any form, but that the only entries of a decree were the docket entries. If these entries can be considered as only orders for a decree which never has been drawn up and filed, or extended in due form, then the motion to amend was seasonably filed. See Thompson v. Goulding, 5 Allen, 81.

The defendant relies upon Snell v. Dwight and Dunham v Presby, 121 Mass. 348. In one of these cases a rescript was sent down on March 1, 1876, "Bill dismissed," and no other decree was entered. In the other case a similar rescript was sent down on May 6, 1876, and on May 16, 1876, a decree dismissing the bill was extended in due form. The petitions to amend the record in each case were presented on November 14, 1876. The court say: "These petitions come too late. By our practice, an entry upon the docket, in a suit in equity, of 'Bill dismissed,' is of itself a final decree, and a more formal order, though convenient and proper for the regular completion of the record, is not essential, and, if afterwards drawn up, is a mere extension of the final decree already entered, and has relation to the time of the entry of that cause. Foote v. Gibbs, 1 Gray, 412; Winslow v. Otis, 5 Gray, 360, 364; Clapp v. Thaxter, 7 Gray, 384. Eight months therefore elapsed in one of these cases, and six months in the other, after the final decree, before any motion was made to amend the record." But from the opinion we infer that the full c...