Pierce v. Lamper
| Decision Date | 11 January 1886 |
| Citation | 6 N.E. 223,141 Mass. 20 |
| Parties | PIERCE v. LAMPER, Ex'r. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
At the trial in the superior court, before KNOWLTON, J., without a jury, the following were the agreed facts: Otis H. Pierce, in his lifetime, was indebted to the plaintiff in the amount claimed in her writ. He died, and on July 22, 1878, Joseph B. Lamper was appointed executor of his will, and gave bonds for the due performance of his trust, and gave notice of his appointment, and on October 2, 1878, filed in the probate court an affidavit of having given such notice. On July 19, 1880, the plaintiff sued out this writ, which was entered at the September term of the superior court. At the December term, 1882, the action was dismissed upon calling the docket under rule 54 of the superior court, because no proceedings had been taken in it during the year immediately preceding, and at the end of the term a general order was entered as follows: “That judgment be entered in all cases ripe for judgment, and that all matters pending and not passed upon be continued to the next term of court.” In January, 1885, a motion was made to restore the case to the docket, and to bring it forward for further proceedings, and the motion was allowed, and the case restored and brought forward. A suggestion was then made of the death of the defendant, Joseph B. Lamper, executor, and a motion for an order to summon Joseph H. Colton, who had been appointed administrator de bonis non with the will annexed of the estate of the said Otis H. Pierce. Said administrator appeared specially, and filed a motion to dismiss the action, setting out the prior proceedings, alleging that the order of the December term, 1882, was a final judgment of dismissal, and was a bar to any further proceedings in the suit, and that the court had no further jurisdiction in the case. This motion was overruled, and the defendant filed a bill of exceptions to the ruling of the court upon the motion, and it was allowed. By order of the court an answer was filed, and the case was put upon the trial list. On the nineteenth day of January, 1885, the said Colton represented the estate of said Otis H. Pierce, insolvent, and the probate court appointed commissioners to receive and pass upon the claims against it. The plaintiff requested a trial for the purpose of determining the amount due, and the hearing was had for that purpose. It appeared that if the plaintiff's claim should be defeated by the statute of limitations, or by other defense, there would be assets which would pass to legatees under the will. The defendant requested the following ruling:
(1) That the dismissal of this action at the December term, 1882, and the general order for judgment passed on the last day of said...
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... ... even though the clerk fails to make any entry upon the ... docket. Gardner v. Dudley, 12 Gray, 430. Pierce v ... Lamper, 141 Mass. 20 ... Davis v. National Life Ins ... Co. 187 Mass. 468 ... Wallace v. Boston Elevated ... Railway, 194 Mass. 328 ... Shawmut ... ...
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