Moriarty v. King

• Decision Date: 26 October 1944
• Citation: 317 Mass. 210,57 N.E.2d 633
• Parties: MORIARTY v. KING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

317 Mass. 210

57 N.E.2d 633

MORIARTY

v.KING.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 26, 1944.

Reservation and Report from Supreme Judicial Court, Hampden County.

Action by Robert W. King, executor of the will of William E. Kneeland, against Daniel J. Curtis to recover upon defendant's indorsement on a note. After judgment defendant died. To review a judgment for plaintiff, Thomas F. Moriarty, executor of the will of Daniel J. Curtis, deceased, brings error.

Reversed and rendered in accordance with opinion.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

G. Harold Madsen and A. T. Garvey, both of Springfield, for plaintiff in error.

E. H. Lyman, Jr., of Springfield, for defendant in error.

QUA, Justice.

This writ of error was sued out and is now prosecuted by the executor of the will of Daniel J. Curtis to reverse a judgment recovered in the Superior Court in an action of contract by King as executor of the will of William E. Kneeland against said Curtis in the latter's lifetime. The judgment was by default for failure to appear and answer.

1. The defendant in error contends that the right to sue out this writ did not survive the death of Curtis, which occurred after the judgment against him but before the filing of the petition for this writ. The defendant in error argues that a writ of error is a new proceeding separate and apart from the original action in which the judgment is entered; that in general personal causes of action do not survive the death of one of the parties; and that writs of error are not listed in G.L.(Ter.Ed.) c. 228, § 1, as inserted by St.1934, c. 300, § 1, among the ‘actions' which survive by virtue of that section ‘in addition to the actions which survive by the common law.’ See also as to survival of causes of action as distinguished from the actions themselves G.L. (Ter.Ed.) c. 230, § 1; Treasurer and Receiver General v. Sheehan, 288 Mass. 468, 193 N.E. 46, 96 A.L.R. 534.

The contention is unsound. It is true that a writ of error is an independent proceeding distinct from the case in which the judgment was rendered. Lee v. Fowler, 263 Mass. 440, 443, 161 N.E. 910. But the right to sue out such a writ is not an original cause of action in the ordinary sense. Writs of error are not employed to enforce legal rights in the first instance. They are essentially a part of the mechanism of appellate procedure. They are generally available in common law cases whenever no other appellate machinery exists. Blackstone treats of them in a chapter relating to ‘Proceedings, in the nature of Appeals.’ He refers to them as ‘writs in the nature of appeals' and as ‘the principal method of redress for erroneous judgments in the king's courts of record.’ 3 Bla.Com. 405, 411. See Stephen on Pleading, 117, et seq.; 5 Dane's Abr. 55. In this Commonwealth the writ of error seems to have remained ‘the principal method of redress for erroneous judgments' in common law cases until by St. 1803, c. 94, § 5, and St. 1804, c. 105, § 5, the foundation was laid for our present practice by which bills of exceptions come to this court before judgment. Endicott, Petitioner, 24 Pick. 339;New England Novelty Co., Inc. v. Sandberg, 315 Mass. 739, 752, 54 N.E.2d 915, and cases cited. Although a writ of error assumes in all respects the form of a new action, its purpose and effect are those of an appeal. ‘It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.’ Marbury v. Madison, 1 Cranch 137, at page 175, 2 L.Ed. 60. It would be incredible that the law should allow a judgment to survive against the estate of a deceased judgment debtor and at the same time withhold from his representatives the established and necessary means of reversing that judgment for error.

We have not found it easy to discover common law decisions precisely in point. The question debated has usually been whether a writ of error actually pending at the time of death survived-a somewhat different question. But the implication is unescapable that the cause of action in error survives.¹ The reasoning in Porter v. Rummery, 10 Mass. 64, tends to support the proposition that the executor or administrator of any party to a judgment may maintain a writ of error to reverse it. In White v. Palmer, 4 Mass. 147, an administrator sued out and successfully prosecuted a writ of error to reverse a judgment rendered against his intestate, and in Hanzes v. Flavio, 234 Mass. 320, 125 N.E. 612, this court entertained a writ of error in which one of the plaintiffs was the administrator of the estate of one named as a party to the original action who had died before the rendition of the judgment therein. The point was not discussed in either of the cases last mentioned. That it was understood in our early practice that such a writ could be maintained appears from statements in 5 Dane's Abr. 67, and Howe's Prac. 473. The decision in Woodward v. Skolfield, 4 Mass. 375, seems to go no farther than to hold that a pending petition for review abated by the death of the petitioner and does not touch the question of survival of the right to petition. The case of Grout v. Chamberlin, 4 Mass. 611, was decided upon other grounds and is not in point.

We are clearly of opinion that by the common law apart from any statute the right to sue out a writ of error survives the death of a party to the original judgment.

2. Error is assigned in that the original writ in the Superior Court, which bore date of August 8, 1941, and commanded the officer to summon the defendant to appear ‘on the first Monday of August next,’ was actually entered on the first Monday of August 1941, to wit, August 4 of that year, four days before its date. It is asserted that the date of the writ is the date of the commencement of the action; that therefore the action was entered before it was brought; and that this was contrary to the provisions of G.L.(Ter.Ed.) c. 223, § 22.

We find in this no prejudicial error. The fact that the writ bore a date later than its return day did not affect its validity as the foundation of an action or deprive the court of jurisdiction. The writ was one of summons and attachment in the established form in common use. G.L.(Ter.Ed.) c. 223, §§ 16, 26. It issued out of the clerk's office, was in the name of the Commonwealth, under the seal of the court, bore teste of the chief justice of the Superior Court, to which it was returnable, and was signed by the clerk. It conformed to all requirements of c. 6, art. 5, part 2, of the Constitution. It was a process of the court. We think it did not lose its character as a process of the court by reason of an obvious clerical mistake in its date. It is plain that there was such mistake because it appears from the officer's return that on July 18, 1941, he attached a chip as the property of the defendant and on the same day gave to him in hand a summons for his appearance ‘as within directed,’ and the writ was entered in court on August 4, 1941. The date of the writ is only prima facie evidence of the time of bringing the action. It may be shown that in fact the action was brought at some other time. Pierce v. Tiernan, 280 Mass. 180, 182 N.E. 292, and cases cited. Regan v. Atlantic Refining Co., 304 Mass. 353, 23 N.E.2d 869. In this case the record itself shows that the action was necessarily brought at least by July 18, 1941, when the writ was served. Wheatland v. Lovering, 10 Gray 16, 17;Myers v. Warren, 275 Mass. 531, 534, 176 N.E. 600;Parker v. Rich, 297 Mass. 111, 113, 8 N.E.2d 345;B.M.C. Durfee Trust Co. v. Turner, 299 Mass. 276, 278, 279, 12 N.E.2d 847. Therefore it is apparent from the record that August 8, 1941, could not have been the true date when the writ came into existence, and that the writ became effective and the action was brought before the entry.

The plaintiff in error presents a further argument upon a related matter. The officer's return recites that he served the writ by summons in hand to the defendant ‘for his appearance at Court as within directed.’ The writ directed the officer to summon the defendant to appear ‘on the first Monday of August next,’ and the writ was dated August 8, 1941, which was after the first Monday of August, 1941. It is therefore insisted that the officer's return must be construed as meaning that he summoned the defendant to appear on the first Monday of August, 1942-long after the date of the judgment. A sufficient answer to this argument is that there is no assignment of error to the effect that the service was inadequate or that the officer's return failed to show proper service upon which judgment could be entered. See Pembroke v. Abington, 2 Mass. 142;Commonwealth v. Sheldon, 3 Mass. 188;Peirce v. Adams, 8 Mass. 383;Hathaway v. Clark, 7 Pick. 145;Swan v. Horton, 14 Gray 179;Eliot v. McCormick, 141 Mass. 194, 6 N.E. 375;Silverton v. Commonwealth, 314 Mass. 52, 49 N.E.2d 439;G.L.(Ter.Ed.) c. 250, § 2. A general statement that the court ‘was without authority or right in entering judgment on default and issuing execution in said action’ would cover any reason which rendered the judgment erroneous and cannot be considered an assignment of any particular error. It is proper to add that there may well have been no defect in the service. The separate summons was the only paper given to the defendant. That paper was itself a process of the court. G.L. (Ter.Ed.) c. 223, §§ 17, 29. Wilbur v. Ripley, 124 Mass. 468. The mistake in the date of the writ may not have been repeated in the date of the summons. By general rule of this court, dated October 30, 1935, 292 Mass. 593, the separate summons is required to state the day, month, and year, of the return of the writ. In view of the facts that the officer served the writ on July 18, 1941, and that the date of the writ as August 8 was at the time of the service obviously a mistake, it seems to ...