Paige v. Sinclair

• Decision Date: 04 March 1921
• Citation: 237 Mass. 482,130 N.E. 177
• Parties: PAIGE et al. v. SINCLAIR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 482

130 N.E. 177

PAIGE et al.

v.SINCLAIR.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1921.

Appeal from Municipal Court of Boston, Appellate Division.

Action by W. H. Paige and others against Harry Sinclair. The municipal court of Boston dismissed the action for want of jurisdiction, and the case was reported. From an order of the appellate division dismissing the report, plaintiffs appeal. Order dismissing the report reversed, and case to stand for trial on merits.A. M. Schwarz and Richard R. Sullivan, both of Boston, for appellants.

Allen & Barnes and M. E. Schneider, all of Boston, for appellee.

RUGG, C. J.

This section was brought in the municipal court of the city of Boston. The writ describes the plaintiffs as of Provincetown, in the county of Barnstable, and the defendant and a trustee as resident in Boston, in the county of Suffolk. The cause of action is tort. The declaration alleges damage to the plaintiffs arising from a collision of automobiles, which occurred in Provincetown and was brought about by the negligence of the defendant. The defendant answered and set up a general denial and contributory negligence of the plaintiffs. There was no plea in abatement and no plea was filed to the jurisdiction. There is nothing on the record before us to indicate that the trustee was served with process or answered, it has made no argument before us, and therefore the case is considered without reference to it. The case was assigned for trial and the parties were in court with their witnesses. The trial judge read the writ and pleadings, which consisted of the declaration and answer. No plea to the jurisdiction having been filed, the court inquired of counsel for the defendant whether any objection to the jurisdiction was raised, receiving an affirmative answer. The court thereupon made the following ruling:

‘I rule of my own motion that on the showing of the writ and declaration, this court has no jurisdiction and I order the action dismissed.’

To this ruling the plaintiffs objected and the case was reported.

The ruling doubtless was based upon the interpretation placed upon St. 1904, c. 320. Its material words are that--

‘An action against a * * * person or corporation to recover for injury or damage received in this commonwealth by reason of negligence * * * shall be brought in the county in which the plaintiff lives or has his usual place of business, or in the county in which the alleged injury or damage was received.’

If that statute affected the jurisdiction of the court it was the duty of the judge to take notice of it even though the partiers raised no question concerning it. Consent does not confer jurisdiction. Boston Bar Association v. Casey, 227 Mass. 46, 50, 116 N. E. 541, and cases cited; Eaton v. Eaton, 233 Mass. 351, 364, 124 N. E. 37, 5 A. L. R. 1426, and cases collected. That statute has been considered in Sandler v. Boston Elevated Railway, 218 Mass. 333, 105 N. E. 980, and in Hanley v. Eastern Steamship Corp., 221 Mass. 125, 109 N. E. 167, Ann. Cas. 1917D, 1034. Its meaning and purpose there are established. In each of those cases the defendant appeared specially and seasonably filed a motion to dismiss on the statutory grounds. That is the correct practice.

The provisions of St. 1904, c. 320 relate to venue of actions rather than the jurisdiction of courts. The substance of that act, now found in G. L. c. 223, § 7, rightly is grouped with other sections under the heading ‘Venue of Actions.’ The distinction between jurisdiction and venue is plainly established. Potter v. Lapointe Machine Tool Co., 201 Mass. 557, 560, 563, 88 N. E. 418. Jurisdiction is a term of comprehensive import. It concerns and defines the power of judicatories and courts. It embraces every kind of judicial action touching the subject of the action, suit, petition, complaint, indictment or other proceeding. It includes power to inquire into facts, to apply the law, to make decision and to declare judgment. Hopkins v. Commonwealth, 3 Metc. 460, 462;Dinan v. Swig, 223 Mass. 516, 520, 112 N. E. 91. Venue in its modern and municipal sense relates to and defines the particular county or territorial area within the state or district in which the cause or prosecution must be brought or tried. It commonly has to do with geographical subdivisions, relates to practice or procedure, may be waived, and does not refer to jurisdiction at all. United States v. Hvoslef, 237 U. S. 1, 12, 35 Sup. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286; British South Africa Co. v. Companhia De Mocambique, [1893] A. C. 602, 617, 619, 630; Herd v. Tuohy, 133 Cal. 55, 65 Pac. 139;In re Ellis' Estate, 55 Minn. 401, 408, 56 N. W. 1056,23 L. R. A. 287, 43 Am. St. Rep. 514.

A plea that the action is brought in the wrong county or wrong district is commonly matter of abatement and does not go to the jurisdiction of the court. Guild v. Bonnemort, 156 Mass. 522, 31 N. E. 645;Silver v. Graves, 210 Mass. 26, 32, 95 N. E. 948;Murphy v. Merrill, 12 Cush. 284;Treasurer and Receiver General v. Sermini, 229 Mass....