Safford v. Knight

• Decision Date: 03 March 1875
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James O. Safford & another v. Alson Knight

117 Mass. 281

James O. Safford & another v. Alson Knight

Supreme Court of Massachusetts

March 3, 1875

June 27, 1873; March 17, 1874

Suffolk. Petition to the Superior Court for a writ of review of a judgment rendered at July term 1872 of that court, on default of the petitioners upon a writ of scire facias against them as bail of John M. Williams. Hearing before Wilkinson, J. who allowed the following bill of exceptions:

"The petitioners alleged in their petition, and proved, that immediately after the service of the writ of scire facias upon them, they employed Robert M. Morse, Jr., a counsellor at law, to defend said action in their behalf, and he undertook so to do, and they had no knowledge that he had not done so, until notified by the counsel for the respondent on July 10 that he had an execution against them. They also alleged and proved that they always intended to surrender said Williams in said action of scire facias, if they should have an opportunity so to do, and that they believed that they had good ground therefor. There was no allegation in the petition of any error in said judgment, except that the action was defaulted without fault on their part. The petitioners proved that said Morse was taken sick in May before the return day of said writ of scire facias, and had not been able to be at his office to attend to any business since that time; that he told the petitioners that he would enter an appearance for them, that the case would not be reached till October term following, that it would be in season if they surrendered said Williams at that time, and that he agreed to give them sufficient notice to enable them to do so.

"The respondent filed a motion to dismiss this petition; and assigned as reasons therefor, that the petition did not set forth any error in the judgment sought to be reviewed; that on a writ of review the petitioners could not accomplish their purpose, to wit, the surrender of their principal; and that there was no ground of defence to said action.

"The judge thereupon passed the following order: 'The petitioners having been defaulted by accident and without fault on their part, and thereby prevented from surrendering their principal in the suit on scire facias against them as bail, a writ of review is ordered to issue for the purpose of allowing the petitioners to surrender their principal, and for that purpose only. Should they make the surrender, the case is then to be disposed of as the court may direct.' To which order the respondent excepted;" and those exceptions were argued in March, 1873.

Exceptions sustained.

H. L Hazelton, for the respondent.

R. Stone, Jr., for the petitioners, was not called upon.

Gray, C. J. Wells & Colt, JJ., Morton & Endicott, JJ., absent.

OPINION

By the Court.

This case is governed by that of Thayer v. Goddard, 19 Pick. 60. The General Statutes upon the subject of reviews, though expressed in a more condensed form than the Revised Statutes, do not appear, and cannot fairly be construed, to have been intended as limiting the power of the courts to reverse the former judgment, in whole or in part, or to render such other judgment as may be required to do full justice to each party. Gen. Sts. c. 126, § 8; c. 146, §§ 19, 32. Fuller v. Storer, 111 Mass. 281.

Exceptions overruled.

The writ of review was then issued, returnable at October term 1873 of the Superior Court. On the return day, and after entry of the writ, the plaintiffs in review produced Williams in court, and offered to surrender him, and, having tendered the costs of the scire facias to the plaintiff therein, and their tender having been refused, offered to pay the same into court, and moved the court to reverse the judgment on scire facias, and to discharge them from their liability as bail. Rockwell, J., declined so to do, and made the following order: "The debtor surrendered into court cannot be committed to jail, because the scire facias is not now pending. Should the judgment in the scire facias be reversed or annulled in the action in review, the court may then allow time for the surrender by the bail, during which time the scire facias will be pending. The prisoner is now discharged from custody in this court, without prejudice to the right of the bail to surrender him at the proper time, but it seems a discharge of the bail would now be premature." "To which order, and refusal to order, so far as it affects the rights of the plaintiffs in review," they alleged exceptions, which were allowed, and forthwith entered in this court, and argued in March, 1874.

R. Stone, Jr., for the plaintiffs in review.

H. L. Hazelton, for the defendant in review.

By the Court. The question presented by these exceptions is not properly before us, and we cannot therefore give any judicial opinion upon it. Exceptions to the rulings made by the Superior Court in the course of proceedings in any case cannot be entered in this court until after final disposition in the court below of the case in which the exceptions are taken. Commonwealth v. Sallen, 11 Gray 52. Bursley v. Barnstable, 14 Gray 106. Marshall v. Merritt, 13 Allen 274. Commonwealth v. Gloucester, 110 Mass. 491. No final judgment having been rendered on the writ of review, the present entry must be

Exceptions dismissed. ^[*] At April term 1874 of the Superior Court, the plaintiffs in review renewed their motion to reverse the judgment on the scire facias, and to discharge them from their liability as bail; and further asked that if, upon the reversal of that judgment, it should appear necessary that they should make surrender of the principal other than as already made, they might be allowed time in which to make such surrender. But Bacon, J., "ruled proforma as matter of law that the surrender already made was invalid because the judgment in scire facias was not reversed, and that the judgment could not be reversed solely for the purpose of allowing the plaintiffs in review to make the surrender, and ordered judgment to be entered for the defendant in review."

The plaintiffs in review then tendered a bill of exceptions reciting and excepting to the rulings and refusals of Rockwell, J., at October term 1873, (as stated in the bill of exceptions then allowed, and above set forth,) and also those of Bacon, J., at April term 1874, and this bill of exceptions was allowed and signed by both judges.

R. M. Morse, Jr. (R. Stone, Jr. with him,) for the plaintiffs in review.

R. D. Smith, (H. L. Hazelton with him,) for the defendant in review.

A review, under our statutes, is equivalent to a new trial after judgment. Everything is open upon the review which might have been suggested in the original action. Good v. Lehan, 8 Cush. 299. Anderson v. Brown, 10 Gray 92. The original judgment is not indeed set aside, but stands until the judgment in the review, which may affirm, reverse or modify the former judgment, in whole or in part, or make such other disposition of the case as may be necessary to secure the just and legal rights of all parties. Foster v. Plummer, 3 Cush. 381. Gifford v. Whalon, 8 Cush. 428. Brown v. Brigham, 5 Allen 582. Fuller v. Storer, 111 Mass. 281.

After the return and entry of the writ of review, this case should have been treated by the court as if the scire facias were still pending; and the bail had the same right to surrender their principal that they would have had, under the Gen. Sts. c. 125, § 12, before judgment in the scire facias, and were not obliged, for the purpose of making such surrender, to wait until after judgment upon the review. Indeed, after that judgment had been entered, the case would be finally disposed of, and it would be too late for a surrender of the principal.

In Swett v. Sullivan, 7 Mass. 342, 348, Chief Justice Parsons said that after the entry of final judgment in the original action, "and until the return and entry of the writ of review, no suit would be pending so that the bail could surrender their principal" -- clearly implying that after the entry of the writ of review such surrender could be made.

In Thayer v. Goddard, 19 Pick. 60, 64, Chief Justice Shaw said that in Jones v....