Nautasket Beach R. Co. v. Ransom
| Decision Date | 20 June 1888 |
| Citation | 147 Mass. 240,17 N.E. 640 |
| Parties | NANTASKET BEACH R. CO. RANSOM, (two cases.) SAME v. RANSOM, (two cases.) SAME v. MASON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R.M. Morse, Jr., and H.L. Harding, for petitioner.
"Final judgments in civil actions commenced by writ may be re-examined and tried anew upon writ of review." Fuller v. Storer, 111 Mass. 282. The writ of review is unknown at common law, and adopted from the courts of equity. Burrell v. Burrell, 10 Mass. 221. In equity bills of review will lie, under Lord BACON'S ordinance of 1619, (1) for error of law appearing in the decree; (2) for new matter which has arisen since the decree, or, with leave of court, for newly-discovered evidence. 1 Sand.Ord. c. 109; Story, Eq.Pl. § 404; Dexter v. Arnold, 5 Mason, 303 Massie v. Graham, 3 McLean, 41. An examination of the statutes shows that there is no expressed limitation of the right of review to cases begun by writ. Insurance Co v. Winslow, 3 Gray, 420; Brewer v. Holmes, 1 Metc. 289; Thayer v. Goddard, 19 Pick. 64. St.1788, c. 11, § 2, (substantially in force now,) in terms gives power to review any judgment if the verdict upon which it is rendered could have been set aside before judgment. And verdicts for damages for land taken by right of eminent domain can be set aside, although proceedings were begun by petition. Pub.St. c. 49, § 52; Railroad Co. v. Railroad, 3 Cush. 58; Walker v. Railroad, Id. 1; Railroad Co. v. Railroad Co., 6 Allen, 98; Com. v. Norfolk, 5 Mass. 434; Harding v. Medway, 10 Metc. 465. The authorities which may be cited to sustain the point that only cases begun by writ are reviewable, are those of award upon submission to referees, petitions for partition, decrees of probate, or divorce. See Hubon v. Bousley, 123 Mass. 368. The absence of a writ was not the ground of decision in Dickenson v. Davis, 4 Mass. 520. The real reason was that the cause was not "triable on review." See Stone v. Davis, 14 Mass. 360. The case of Borden v. Brown, 7 Mass. 93, was a petition for partition under St.1783, c. 41. Inasmuch as the law then in force gave the court power to review "civil actions, without being limited to particular cases, any omission in the aforesaid act notwithstanding," it seems a narrow construction to hold that "reviews are provided only where the original action is commenced by writ." See Lucas v. Lucas, 3 Gray, 138. Sturdivant v. Greeley, 4 Greenl. 538, denies the doctrine of Borden v. Brown. The third class of cases comprises those seeking a review of decrees of probate or divorce. Pope v. Pope, 4 Pick. 129; Lucas v. Lucas, 3 Gray, 136. See Fuller v. Storer, 111 Mass. 282; Hubon v. Bousley, supra. It is believed that not a case can be found which gives any reason why the action must be commenced by writ. Thayer v. Goddard, 19 Pick. 62. That it is immaterial how the issues arrived at is shown by the cases in which a judgment on an agreed statement of facts has been reviewed. Stockbridge v. West Stockbridge, 13 Mass. 302; Ward v. Clapp, 6 Metc. 414; Petersham v. Dana, 12 Mass. 429. This action to recover land damages is brought, by the terms of the statute, within the class of cases for which the statutes of review were passed. See St.1788, c. 11; St.1791, c. 17; St.1827, c. 77, § 12; Pub.St. c. 49, § 105; Miller v. Commissioners, 119 Mass. 485; Williams v. Taunton, 126 Mass. 287. The right to review on the present petition was not lost by reason of the former application. Davenport v. Holland, 2 Cush. 11; Burrell v. Burrell, 10 Mass. 221; Hayes v. Collins, 114 Mass. 54. A decision on a petition for a review can be revised for erroneous ruling in matters of law. Dearborn v. Mathes, 128 Mass. 194; Davenport v. Holland, 2 Cush. 1; Converse v. Carter, 8 Allen, 568; Richardson v. Lloyd, 99 Mass. 475. See Woodward v. Leavitt, 107 Mass. 453.
Lyman Mason, for defendants.
These are not cases of final judgment in civil actions which can be re-examined and tried anew by the supreme judicial or superior court. Pub.St. c. 187, §§ 17-19. It is held that, to entitle a party to a writ of review, the action must have been commenced by writ, and not by petition or complaint, and must be a civil action. 6 Dane, Abr. c. 189, § 2; Dickenson v. Davis, 4 Mass. 520; Borden v. Brown, 7 Mass. 93; Fuller v. Storer, 111 Mass. 282; Hubon v. Bousley, 123 Mass. 368. The supreme court will not, in the exercise of its discretion, grant a petition for review of a judgment rendered in the superior court, after a trial had by order of the judge, where the aggrieved party was heard on the question of postponing the trial, and afterwards had an opportunity of applying to the same court for relief, and to present all the facts upon which the petition for review is provided, if there is not clear proof of misapprehension, corruption, or incapacity on the part of the judge. Converse v. Carter, 8 Allen, 568, 569, (1864.) The power of setting aside the proceedings of a subordinate court acting on a matter within its discretion, by an application for review, is to be exercised cautiously and sparingly, and only in cases in which it is apparent that the rights of the parties could not otherwise have been secured. Lucas v. Lucas, 3 Gray, 139; Borden v. Brown, 7 Mass. 93; Stone v. Davis, 14 Mass. 360. The case of Converse v. Carter, 8 Allen, 568, does not sustain petitioner's proposition. It was the duty of the petitioners to show that their counsel filed these petitions in the proper court, and brought the matter before the court, and show what the decision of that court was; otherwise the presumption is that the court held they had no case for review, and therefore declined to grant an order of notice. A decision of a single justice refusing a review which involves no question of law is final, and not open to exception. Weeks v. Adamson, 106 Mass. 517. A petition for review is addressed to the discretion of the judge, and his decision thereon can be revised upon exceptions or report only for erroneous rulings in matters of law. Hayes v. Collins, 114 Mass. 56. The only judgment that can be given on a petition for review is that a writ of review shall or shall not be granted; and if the judge refused to allow an order of notice, it was the duty of petitioner's counsel to except within the time allowed by the rules. Davenport v. Holland, 2 Cush. 11.
OPINION
These are petitions for writs of review of judgments of the superior court upon verdicts of juries in that court, assessing damages, upon the petitions of the respondents, for lands taken by this petitioner for its railroad. The first question is whether the statute authorizes a review of such a judgment. Pub.St. c. 187, § 16, provides that "trial judgments in civil actions may be re-examined and tried anew as provided in the following sections." Section 22 provides that "if judgment is rendered in a civil action, either by the supreme judicial court or superior court, the supreme judicial court, except when a review is provided as of right, may, on petition, grant a review on such terms as it deems reasonable." Pub.St. c. 112, § 95, authorizes railroad corporations to take land, and provides that they shall pay damages therefor, which, upon the application of either party, shall be estimated by the county commissioners in the manner provided with reference to the laying out of highways. Section 99 gives to either party, if dissatisfied with the estimate of the county commissioners, a right to apply for a jury to assess the damages. The statute in relation to highways gives to a party aggrieved by the estimate of damages made by the county commissioners a right to a trial by a sheriff's jury upon a written application to the commissioners. Pub.St. c. 49,§§ 32-37. Section 105 of the same chapter (chapter 49) provides that, "in all cases in which it is provided by law that a sheriff's jury may be had for any purpose, application for a jury may be made by petition to the superior court, and thereupon, after such notice as the court shall order to the adverse party or parties, a trial may be had at the bar of said court in the same manner as other civil cases are there tried by jury." In the cases at bar the applications to the county commissioners to assess damages were made by the respondents. The petitions to the superior court for a jury were made by these petitioners; and the question is whether the judgments of that court upon verdicts of the jury are judgments in a "civil action," within the meaning of the statute authorizing writs of review. In substance, the proceedings are civil actions. The trials were of issues of fact by juries. The verdicts were for damages, and executions issued on the judgments. The statute itself includes the proceedings with "other civil cases." These were "cases" to ascertain and enforce the collection of damages due from these petitioners to the respondents; and the only ground upon which it is claimed that they are not "civil actions" is that they were not commenced by writ. We regard it as immaterial in this respect whether the statute authorized them to be commenced by petition or by writ. The issues and the course of trial would be the same whether the defendants were required to come in on a writ of summons, or upon notice ordered on the filing of the petition. If the legislature should abolish all original writs, and require all actions to be commenced by petition, writs of review would survive. In Dickenson v. Davis, 4 Mass. 520, it was decided that review would not lie of a judgment of the court of common pleas upon the report of referees appointed by a justice of the peace under the statute. The court say: ...
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