Raymond v. Butterworth
| Decision Date | 22 June 1885 |
| Citation | 1 N.E. 126,139 Mass. 471 |
| Parties | Nathan B. Raymond v. Albert F. Butterworth |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Judgment affirmed.
A. B Wentworth, for the plaintiff in error.
H. P Fellows, for the defendant in error.
Morton C. J.
This is a writ of error to reverse a judgment of the Municipal Court of East Boston.
The first error assigned is, that, at the time of suing out the writ in that court, and of the rendition of the judgment, the cause of action alleged in the declaration did not exist, but had been satisfied. Error in fact cannot be assigned when the matter of fact might have been put in issue and tried in the original suit. A party cannot retry his case upon error. Whether a right of action existed, or had been paid and satisfied, was a fact which the plaintiff in error should have tried in the original suit, and his remedy, if dissatisfied with the judgment, was by appeal. Riley v. Waugh, 8 Cush. 220. Joan v Commonwealth, 136 Mass. 162. Besides, it appears by the report before us that there was no error in fact. The suit was upon a judgment rendered against the plaintiff in error and one Bemis. Bemis was arrested upon the execution issued thereon, and was afterwards, by order of the judgment creditor, released from arrest; and the plaintiff in error contends that this operated as a discharge and satisfaction of the judgment. Whatever may be the common law doctrine as to the effect of the commitment of a debtor on execution, it has long been the settled law of this Commonwealth that a judgment is not discharged by such commitment and a subsequent release from arrest, but remains in full force against the party committed, and may be satisfied by a levy on his property, and, a fortiori, it remains in force against a joint judgment debtor. Cheney v. Whitely, 9 Cush. 289.
The second assignment of error is, that the Municipal Court of East Boston had no jurisdiction of the action; but it is not clear whether it was intended as an assignment of error in law or error in fact.
If it be treated as an assignment of error in law, it is clear that no error is shown. The record of the Municipal Court shows that the action was a trustee process, in which one of the trustees was described as "having his usual place of business in East Boston, within the judicial district of said ...
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