Thompson v. Dickinson

• Decision Date: 20 May 1893
• Citation: 34 N.E. 262,159 Mass. 210
• Parties: THOMPSON v. DICKINSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 210

34 N.E. 262

THOMPSON v. DICKINSON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1893

COUNSEL

E.W. Cate, for petitioner.

S.J Elder, for defendantM.F. Dickinson.

G.F Richardson, for defendantH.R. Bailey.

D.O Allen, for defendantJ.L. Hunt.

OPINION

FIELD C.J.

The plaintiff in this suit duly filed his exceptions.The presiding justice appointed "June 18, 1892, 8 o'clock A.M., at the court house, East Cambridge," as the time and place for hearing the parties concerning the allowance of the exceptions, and an indorsement on the exceptions states that, "said Thompson not appearing to prosecute and settle said exceptions, and the defendants did appear, the said exceptions are disallowed."The commissioner to whom the plaintiff's petition to prove his exceptions was referred has found that the presiding justice "did not pass upon the truth of said exceptions, or any of them," and that he erred "in disallowing the exceptions solely on the ground of the nonappearance of the petitioner," etc.A party may undoubtedly abandon his exceptions after he has filed them, but such abandonment ought not to be inferred merely from his failure to appear at only one hearing appointed for settling them.The procedure is regulated by Pub.St. c. 153, § 8.The statute provides that the adverse party"shall have an opportunity to be heard concerning the allowance of the exceptions," but there is no similar provision concerning the party who excepts.In practice both parties usually attend, that each may be heard upon any amendment or modification of the exceptions that may be suggested by the other or by the court.But the excepting party has a right to stand upon his exceptions as he has framed them.It then becomes the duty of the presiding justice to examine them, and, if they are "found conformable to the truth," to allow them, whether the excepting party appears or not.The commissioner has found that the "exceptions tendered did conform to the truth, unless some one or more of the thirty-one omissions specified above were material, and should have been included therein."We have examined these omissions, which are shown by the commissioner's report, and none of them seems to us to be essential to the proper understanding of the exceptions.We therefore consider the exceptions as proved.SeeMorse v. Woodworth,155 Mass. 233, 27 N.E. 1010.

The first exception is to the exclusion of evidence that, before the action of Beals v. Thompson was brought, the financial standing and reputation of the plaintiff in the present suit was good, and that, after judgment was rendered in that action, his financial standing and reputation were impaired.This exception plainly relates to damages, and it becomes immaterial if the plaintiff failed to prove a cause of action.The plaintiff's remaining contentions are: First that the action of Beals v. Thompson was an action for libel, and that the cause of action was within Pub.St. c. 197, § 3, and that, if this statute of limitations had been pleaded, it would have been a defense, and that the present defendants, as his attorneys in that action, were negligent in not pleading this statute, or in asking leave of the court to plead it; and, secondly, that the defendants wrongfully withdrew their appearances, and refused to continue to act as his attorneys in that action.It was admitted that since the judgment in the action of Beals v. Thompson the plaintiff in the present action has been adjudged an insolvent debtor, and that assignees of his estate have been duly chosen, and that he has not obtained leave of his assignees to prosecute this action, nor have said assignees intervened in it.On these admitted facts the defendants contended that the plaintiff had no right to bring and prosecute this action, and the plaintiff contended that the cause of action did not pass to the assignees, and that this defense was not open to the defendants under their answers.The presiding justice ruled that under the order of the court made in the suit of Beals v. Thompson, taking off the default, the defendant therein was limited in his defenses to those stated in the order; "and that said order by its terms excluded the right of the defendant to plead the statute of limitations; and that the plaintiff had shown no negligence on the part of the defendants in connection with said case of Beals v. Thompson; and that as a matter of law, upon the undisputed evidence in this case, the plaintiff had not made out his case, and was not entitled to go to the jury."Of the four defendants Hunt did not withdraw his appearance in the action of Beals v. Thompson, but continued to act as the attorney of the defendant therein until final judgment.The exceptions recite that the plaintiff"offered in evidence a duly-authenticated copy of the record in the case of Mira Beals against him."This record shows that in October, 1888, Mr. Richardson, and on October 9, 1888, Mr. Dickinson and Mr. Bailey, withdrew their appearances as attorneys for the defendant.The plaintiff also introduced in evidence the answers of these defendants to the interrogatories filed by him.Mr. Richardson answered: "I notified Thompson about October 1, 1888, that I could not act further in his case, and could not try it; and subsequently withdrew my appearance about October 9th.I did not act after October 1st. Said Thompson assented to my withdrawal.I obtained...