Perkins v. Bangs
| Decision Date | 16 September 1910 |
| Citation | 92 N.E. 623,206 Mass. 408 |
| Parties | PERKINS et al. v. BANGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Harrison Dunham & Son, for Henry Richardson, coplaintiff.
Robert W. Light and Arthur W. Blakemore, for defendant.
Arthur T. Johnson, for Frank A. Perkins.
By Rev St. 1836, c. 112, § 15, which was re-enacted without any material change in Gen. St. 1860, c. 146, § 18, Pub. St 1882, c. 187, § 15, and Rev. Laws, c. 193, § 2, proceedings upon writs of error whether relating to the assignment of errors, the pleadings, the judgment, and all other matters not expressly provided for, are to be according to the course of the common law, except as modified by the practice and usage in this commonwealth. Notwithstanding the rule of the common law was to the contrary, it is settled in our practice that, when a writ of error is used to review a final judgment, errors of fact which render the judgment invalid may be joined in the assignment with errors of law. The merits of the original action, having been determined by the judgment, are not involved, and the only question presented is whether the judgment should be reversed or affirmed. Hathaway v. Clark, 7 Pick. 145; Raymond v Butterworth, 139 Mass. 471, 1 N.E. 126; Eliot v. McCormick, 141 Mass. 194, 6 N.E. 375; Johnson v. Waterhouse, 152 Mass. 585, 26 N.E. 234, 11 L. R. A. 440, 23 Am. St. Rep. 858; Rev. Laws, c. 193, § 4. When served with the scire facias, in which a copy of the assignment of errors must be inserted, the defendant may traverse the errors of fact, and by demurrer put in issue errors of law shown on the face of the record. If instead he resorts to the common plea of 'in nullo est erratum,' he admits the truth of the assignment of errors of fact so far as they are legally assignable, and that the record is true as to the assignment of errors of law, while denying that either is sufficient to reverse the judgment. Goodridge v. Ross, 6 Metc. 487; Riley v. Waugh, 8 Cush. 220, 222; Bodurtha v. Goodrich, 3 Gray, 508, 512; Conto v. Silvia, 170 Mass. 152, 154, 49 N.E. 86.
The defendant, however, neither traversed the facts, nor pleaded that there was no error of law in the record, but under the procedure sanctioned by Eliot v. McCormick, 141 Mass. 194, 6 N.E. 375, demurred specifically to the several assignments as not disclosing any invalidity in the proceedings, and because the exclusive remedy of the plaintiffs in error was by appeal, this court had no jurisdiction to entertain the writ. Martin v. Commonwealth, 1 Mass. 347. By the demurrer all matters well pleaded were admitted, and issues of law alone were raised, which under Rev. Laws, c. 156, § 6, could be heard and determined only by the full court, where they were immediately pending. It was not therefore within the authority of a single justice either to decide, or even to report, or reserve them. Tufts v. Newton, 119 Mass. 476; Bailey v. Edmundson, 168 Mass. 297, 46 N.E. 1064; Conto v. Silvia, 170 Mass. 152, 49 N.E. 86. In the questions presented the primary inquiry is whether the plaintiffs could have appealed from the judgment which they seek to reverse. The defendant in error having recovered judgment in the municipal court against the plaintiffs in error, the execution was returned satisfied by a levy and sale under Rev. Laws, c. 178, §§ 1, 26, of certain real estate alleged to belong to one of the debtors, although standing in the name of a stranger. But the judgment creditor, who was the purchaser, having failed within one year from the return of the execution to begin suit to recover possession as required by section 47 of this chapter, judgment was ordered for the tenant in the writ of entry which she subsequently brought in the superior court. It appearing by the record that the original judgment had been satisfied, she could not maintain an action of contract, but must resort to a writ of scire facias under Rev. Laws, c. 178, § 51, to vacate the return of satisfaction, and for the award of a new execution. Dennis v. Arnold, 12 Metc. 449; Perry v. Perry, 2 Gray, 326; Wareham Savings Bank v. Vaughan, 133 Mass. 534.
This remedy when first provided by St. 1785, c. 6, was discretionary, and granted only on application to the court from which the execution issued, but since Rev. St. 1836, c. 73, § 21, the writ is purchased at the clerk's office, and issues as of right. Kendrick v. Wentworth, 14 Mass. 57; Wilson v. Green, 19 Pick. 433; Sigourney v. Stockwell, 4 Metc. 518, 521. The necessary recitals and allegations which constitute the declaration are not filled in by the clerk, but by counsel, who if he indorses the writ may be held liable for costs where the plaintiff is a nonresident. Morrill v. Lamson, 138 Mass. 115; Rev. Laws, c. 173, § 39. It is made returnable at a regular return day, and after service by copy is entered upon the docket as an independent suit. The plaintiff must show that the former levy is either partially or wholly invalid, while the defendant in his answer, among other defenses, may plead in bar a subsequent judgment, or a release of the judgment. Rev. Laws, c. 178, § 51; Adams v. Savage, 3 Salk. 321; Yelverton, 218. If the defendant 'does not show sufficient cause to the contrary the levy of the former execution may be set aside, and another execution issue for the amount then due on the original judgment, and not included in a subsequent judgment, but without interest or further costs.' Rev. Laws, c. 178, § 51. The pleadings necessarily refer to the former judgment, but the action is instituted for the enforcement of a right wholly distinct from the issues in the original suit. Haskell v. Littlefield, 155 Mass. 320, 29 N.E. 626, Dickson v. Wilkinson, 3 How. 57, 59, 11 L.Ed. 491; Treviban v. Lawrence, 2 Ld. Ray. 1036, 1048; Obrian v. Ram, 1 Mod. 186, 189, 8 Bac. Abr. 598, 624. In the former action the litigation has been finally closed, and upon the defendant's default, or decision against him on the merits, the court renders judgment awarding another execution. Haskell v. Littlefield, 155 Mass. 320, 29 N.E. 626.
It is apparent, from these fundamental characteristics, that scire facias to revive a judgment, although issued upon an existing record, is a suit at law in the nature of an original action. Sigourney v. Stockwell, 4 Metc. 518, 521; Com. v. Stebbins, 4 Gray, 25, 26; Ensworth v. Davenport, 9 Conn. 392; White v. Washington School District, 45 Conn. 59; Potter v. Titcomb, 13 Me. 36; Greenway v. Dare, 6 N. J. Law, 305; Gonnigal v. Smith, 6 Johns. (N. Y.) 106; Kirkland v. Krebs, 34 Md. 93; Humiston v. Smith, 21 Cal. 129; Bryant v. Smith, 7 Cold. (Tenn.) 113; Winder v. Caldwell, 14 How. 434, 14 L.Ed. 487; Owens v. McCloskey, 161 U.S. 642, 16 S.Ct. 693, 40 L.Ed. 837; Grey v. Jones, 2 Wils. 251; Fenno v. Evans, 1 T. R. 267; Farrell v. Gleason, 11 Clark & F. 702; Co. Litt. 290, b; 8 Bac. Abr. 598, 624; Tidd's Pr. 1046; 2 Sellon's Pr. 275. Nor is the decision in Gray v. Thrasher, 104 Mass. 373, on which the plaintiffs place much reliance, in conflict with this view. It was there held under St. 1862, c. 217, § 4, authorizing the removal before judgment in the police court of Boston of any civil action wherein the debt or damages demanded exceeded a certain amount to the superior court, that scire facias to charge a trustee could not be removed. The statute, which was repealed by Pub. St. 1882, c. 224, evidently referred, as the opinion indicates, only to actions of contract, tort or replevin enumerated in Gen. St. 1860, c. 120, §§ 1, 2, in which the appellate court could enter judgment and issue execution upon the record before it. Gen. St. 1860, c. 116, § 41; St. 1866, c. 279, § 9; Cooper v. Skinner, 124 Mass. 183; Dion v. Powers, 128 Mass. 192, 193. By Rev. Laws, c. 173, § 97, an appeal may be taken from the final judgment of a district, police or municipal court by the party aggrieve to the superior court.
The plaintiffs contend that the statute is inapplicable, as the record of the original judgment upon which the execution must issue cannot be transmitted. But this is not necessary. The appeal transmits only the subject-matter of the suit, and the question is whether upon the pleadings, and the evidence which may be offered, the plaintiff is entitled to specific relief. Jarvis v. Mitchell, 99 Mass. 530, 532. When this has been decided, the appellate court causes an attested copy of its order, which is treated as a judgment, to be sent to the court below, where, if the plaintiff prevails execution issues upon the record. ...
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