Moriarty v. King

• Court: Supreme Judicial Court of Massachusetts
• Citation: Moriarty v. King, 317 Mass. 210, 57 N.E.2d 633 (Mass. 1944)
• Decision Date: 26 October 1944
• Parties: THOMAS F. MORIARTY, executor, v. ROBERT W. KING, executor.

317 Mass. 210

57 N.E.2d 633

THOMAS F. MORIARTY, executor, v. ROBERT W. KING, executor.

Supreme Judicial Court of Massachusetts, Hampden.

October 26, 1944

September 21, 1944.

Present: FIELD, C.

J., QUA, DOLAN WILKINS, & SPALDING, JJ.

Error. Writ of.

Survival of Action. Executor and Administrator, Survival of action. Practice Civil, Writ, Service of process, Judgment. Pleading, Civil Declaration. Surety. Bills and Notes, Indorser. Contract Implied.

By 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.

The fact that a writ, otherwise in due form, bore a date four days after its return date, which was plainly shown by the officer's return on the writ and the time of its entry to have been a clerical error, did not affect the validity of the writ as the foundation of the action nor deprive the court of jurisdiction, and was not prejudicial error entitling the defendant on a writ of error to reversal of a judgment entered against him by default.

A contention by the executor of a will, plaintiff in error, seeking reversal of a judgment entered against his testate by default, that there was error in that, upon the writ returnable "on the first Monday of August next" but bearing a date four days later than that Monday, a return of service, stating that the officer served the summons in hand upon the defendant "for his appearance at court as within directed," must be construed as meaning that the defendant was summoned to appear on the first Monday of August of the succeeding year, long after the entry of judgment, was not open under an assignment of error merely that the court "was without authority or right in entering judgment on default and issuing execution in said action."

A closing statement of a declaration that "the defendant owes" the plaintiff a certain amount is not in itself a statement of fact justifying a judgment entered for the plaintiff on default of the defendant.

Allegations in a declaration that the plaintiff and the defendant indorsed a note "as joint sureties" for the maker, that the maker neglected to pay the note, and that the plaintiff on demand paid it to the payee, justified a judgment for the plaintiff by default for one half of the amount so paid by him but not for the full amount.

An entry of a judgment by default for an amount twice that justified by the allegations of the declaration was an error on the face of the record which on a writ of error might be corrected by reversing the judgment and, under G. L. (Ter. Ed.) c. 250, Section 3, ordering the rendering of a judgment in the correct amount, with costs.

Because of the death of the defendant after the entry of a judgment which, on a writ of error sued out by the executor of his will, was adjudged to have been erroneous in that it was excessive in amount, this court, in directing judgment for the proper amount under G. L. (Ter. Ed.) c. 250,

Section 3, ordered its entry nunc pro tunc as of the date of the original judgment.

WRIT OF ERROR in the Supreme Judicial Court for the county of Hampden dated June 19, 1943.

Upon return on the writ, the case was reserved and reported by Qua, J., without decision.

The case was submitted on briefs.

G. H. Madsen & A.

T. Garvey, for the plaintiff in error.

E. H. Lyman, Jr., for the defendant in error.

QUA, J. 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, Section 1, as inserted by St. 1934 c. 300, Section 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, Section 1; Treasurer & Receiver General v. Sheehan, 288 Mass. 468 .

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. 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, Section 5, and St. 1804, c. 105, Section 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, 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. 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 , 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, Section 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, Sections 16, 26. It issued out of the clerk's office was in the name of the Commonwealth, under the seal of the court, bore test 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, 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...