Smith v. O'brien

• Decision Date: 02 March 1888
• Citation: 146 Mass. 294,15 N.E. 645
• Parties: SMITH v. O'BRIEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 294

15 N.E. 645

SMITH v. O'BRIEN.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1888

COUNSEL

Ranney &amp Clark, for petitioner.

OPINION

The petition is brought under section 25, c. 187, Pub.St., and the provisions of section 17 of that chapter have no application here. The facts stated in the bill of exceptions are proper ground for granting review. Keene v White, 136 Mass. 23. The court, having found as a matter of fact that petitioner was entitled to a review, necessarily found as a further fact that part payment was not a waiver and to findings of fact no exception lies. Boston v Robbins, 116 Mass. 313. A waiver is an intentional unconditional surrender of a right, and this part payment, in order to constitute a waiver of right of review, must plainly appear to be made for that purpose. But the only fair inference to be drawn from the evidence reported in the bill is that petitioner made this part payment to save his property from threatened levy, and therefore it was no waiver, because not intended as such. Baker v. Copeland, 140 Mass. 342, 4 N.E. 606. He could have been compelled to pay it if he had not filed a bond and obtained a supersedeas, even while his petition for review was pending. Pub.St. § 39, c. 187. And if the judgment was afterwards set aside, he could have recovered back all he had so paid. Stevens v. Fitch, 11 Metc. 248. Waiver is usually a question of fact, and, it is submitted, is so in this case. Fox v. Harding, 7 Cush. 516, and cases cited; Railroad Corp. v. Paige, 135 Mass. 145. It is submitted that the matters embraced in the second exception are matters of fact, and not open to exception. Boston v. Robbins, ubi supra.

S.H. Dudley, for defendant.

This is not a case that appeals either to the sympathy or discretion of the court, even if such sympathy or discretion could in this case be properly exercised in petitioner's behalf. This is not a case of bringing forward an action when the court may be of "opinion that there is a sufficient cause for a review," (Pub.St. c. 187, § 17;) nor was it a suit against an absent defendant, (Pub.St. c. 187, § 21;) nor does it come within Pub.St. c. 187, § 22. The only statute authority for the review is found in Pub.St. c. 187 § 25, where it is provided that the superior court "may grant review of judgments rendered before a *** municipal court, in any case in which a review might be granted if the judgment had been rendered in the superior court." Could the superior court, after a fair trial of the case, properly grant a review of the judgment in question, had it been a judgment of its own, on the mere failure of the petitioner, by mistake or inadvertence, to comply with a statutory requirement in order to avail himself of a strictly technical right? Not under section 17; for the judgment was satisfied in part, both before the petition was filed and likewise before the hearing and order thereon; nor under either of the other statutes cited; nor because of any error or injustice to petitioner; for none appears except that of the petitioner himself. The petitioner has clearly waived his right to a review. On the day when he made oath to his petition, he voluntarily paid and satisfied a part of the judgment, and promised to pay the balance on a day certain. If he made the payment before he signed and swore to his petition, as he did before he filed it, because he did not file it...