Whitney v. Porter

• Decision Date: 28 February 1925
• Citation: 251 Mass. 547,146 N.E. 771
• Parties: WHITNEY v. PORTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 547

146 N.E. 771

WHITNEY

v.PORTER.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1925.

Exceptions from Superior Court, Middlesex County; John A. Aiken, Judge.

Writ of review by Arthur H. Whitney to review judgment recovered against him by Rose M. Porter in action of tort. On plaintiff's exception to denial of motion for directed verdict, to admission of evidence, and to denial of request for rulings. Exceptions sustained.

C. F. Eldredge, of Boston, and P. F. Ryan, for plaintiff.

W. J. Barry, of Boston, for defendant.

BRALEY, J.

[1] The defendant Porter on January 3, 1916, having recovered final judgment for damages assessed by the court in an action of tort against the plaintiff in review who never appeared but was defaulted, he petitioned within one year thereafter for a writ of review which was granted, and the execution was stayed or superseded. A review under our law is said to be equivalent to a new trial after judgment, and everything is open upon the review as it would have been in the original action. But the judgment is not set aside. It stands until the judgment in 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 equal rights of all parties. Safford v. Knight, 117 Mass. 281, 284;Lynn Gas Co. v. Creditors' National Clearing House, 235 Mass. 114, 118, 126 N. E. 364;G. L. c. 250, § 22.

[2] If issue had been joined in the original suit, the case upon review could be tried upon the original pleadings or on any amendment of the original pleadings. G. L. c. 250, § 31; Fuller v. Storer, 111 Mass. 281, 282, 283. But section 32 provides, that where judgment in the original action, as in the case at bar, is rendered without a joinder of issue, the parties shall plead or answer upon the review in like manner as they might have done in the original action, and the case shall be tried upon any issue of fact or law joined upon such pleadings or answer.

The judgment was founded on alleged actionable misrepresentations, as stated in the declaration, of Whitney and other persons joined as defendants against whom the plaintiff before judgment had discontinued. Good v. Lehan, 8 Cush. 299, 300. The defendant in review could be permitted so to amend her declaration as to state her claim in tort more fully or accurately as she might have done in the original action. But the petition for review as well as the writ of review related solely to a judgment in an action of tort. There was no judgment in an action of contract in existence, and the allowance of the amendment changing the action from tort to contract transformed the...