Smith v. Butler

Decision Date16 May 1900
Citation176 Mass. 38,57 N.E. 322
PartiesSMITH et al. v. BUTLER et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

E. P. Carver and A. C. Burnham, for plaintiffs.

William H. Baker, for defendants.



1. The first question presented in this case is that raised by the appeal of the defendants Butler, R. H. and J. L. McLauthlin and Bradford, who were the defendants in the three actions at law, from the order of the superior court allowing the three actions at law to be consolidated and amended into one bill in equity, in which all the part owners of the bark (23 in addition to themselves, making 26 in all) were joined as parties defendant. A motion was made by the plaintiff in each of the three actions at law, stating that the action in which the motion was filed and the other actions at law had been begun under a misapprehension, and that, in consequence of the lapse of time, a new proceeding might be barred by the statute of limitations, and praying that the action at law in question might be amended by changing it into a suit in equity, in which all of said co-owners should be joined, and annexing thereto the bill in equity to be filed if the motion was allowed. The superior court made an entry in each action at law, allowing the 'motion to amend by changing into suit in equity and consolidation with' the other two actions at law. There is no question of the power of the superior court to allow an action at law to be amended into a bill in equity, and we have no more doubt of its power when, through a misapprehension, plaintiffs have brought three separate actions at law to enforce a cause of action which can only be enforced by one bill in equity to consolidate the actions and amend the consolidated action into a bill in equity.

2. The second question is the question whether the plaintiffs' claim is barred by the statute of limitations. The cause of action sued on was not barred when the three actions at law were originally brought, but it was barred when the motion to consolidate those actions and to convert them into a bill in equity was made. We are of opinion that the plaintiffs' claim against the defendants in the three original actions at law is not barred, but that their claim against those defendants who were first made parties to the litigation by the filing of the bill in equity is barred. So far as the defendants in the three original actions are concerned, the cause of action enforced by the decree entered in the bill in equity is the cause of action sued on in the separate actions at law. In each action at law the plaintiffs sought a judgment against the defendant in that action for his share of the deficit resulting from the voyages of the bark in question. In the bill in equity, a decree has been entered against each defendant separately, directing him to pay to the plaintiff a specified sum which the court found to be that defendant's share of the deficit in question. The only purpose of the amendment was to cure a mistake made by the plaintiffs' counsel as to the proper remedy for enforcing the causes of action which were the subject of the three actions at law, and the reason given by the plaintiffs for their motion to be allowed to amend in place of beginning a new action was that a new action 'might be barred by the statute of limitations.' It has been the settled practice in this commonwealth for a period of over 50 years to allow amendments under such circumstances, in place of putting a plaintiff to a new suit and to allow those amendments on the ground that, if a new suit were brought, it would be barred by the statute. We cannot doubt that this was effectual, and that the defendant could not plead the statute to the action so amended. Davenport v. Holland, 2 Cush. 1, 15; Sanger v. City of Newton, 134 Mass. 308-310; Loring v. Salisbury Mills, 125 Mass. 138, 142. But the suit in equity, as against the defendants, who were brought in by amendment, was begun for the first time when the amendment was made, and they were for the first time made parties defendant. The statute of limitations is a bar to the claim against them. Miller v. McIntyre, 6 Pet. 61, 8 L.Ed. 320; Woodward v. Ware, 37 Me. 563; Brown v. Goolsby, 34 Miss. 437. The case does not come within the principle of Burgie v. Parks, 11 Lea, 84, in which it was held that in a suit to enforce a claim against the estate of a testator of whose will there were two executors, one of whom only was sued, the statute of limitations could not be set up by the other executor when he was joined as a party defendant by an amendment after the statutory time had run. In that case the amendment cured a description of the person who represented the estate, which was liable for the cause of action originally sued on. Here no claim was made against the new defendants in the three actions originally brought at law, and the amendment introduced a new cause of action against a new defendant. Nor does this case come within Woodward v. Ware, 37 Me. 563, 564, cited by the plaintiffs. In that case it was intimated that, if a surety is sued before ...

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