Winch v. Hosmer
| Decision Date | 10 April 1877 |
| Citation | 122 Mass. 438 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Calvin M. Winch & another v. Edward B. Hosmer & others |
Suffolk. Petition to the Superior Court for a writ of review of a judgment recovered by the respondents against James C Melvin, in an action of replevin of certain barrels of flour. The petition alleged that George H. Dupee, of whom the petitioners were the assignees in bankruptcy, owned the flour and left it in the possession of Melvin as a warehouseman.
At the hearing before Gardner, J., the respondents objected to the petition being allowed, for the reason that the petitioners were not parties to the record. The petitioners then made a motion to amend their petition as follows:
"And now come Calvin M. Winch and Joseph R. Farwell, assignees as set forth in said petition, and move to amend their said petition by introducing as a new party James C. Melvin as petitioner in said petition, but for the benefit of your petitioners as assignees of the estate of said Dupee, so as to enable them to maintain their said petition for the cause for which it was intended to be brought; said party which your petitioners desire should be joined having been the defendant in the original action."
The respondents objected to the allowance of the amendment, and asked the judge to rule, as matter of law, that the amendment should not be allowed, and that the petition could not be maintained. But the judge allowed the amendment and granted the review as prayed for; and the respondents alleged exceptions.
Exceptions overruled.
D. F Fitz & J. H. Sherburne, for the respondents.
S. J. Thomas, for the petitioners.
A writ of review, like a writ of error, must be in the name of a party to the original judgment, or of those who have by law succeeded to his rights upon his death or bankruptcy. Gen. Sts. c. 146, §§ 30-38. Johnson v. Thaxter, 7 Gray 242. As Dupee, the alleged owner of the goods replevied, was not a party of record to the original action, his assignees in bankruptcy could not maintain a petition for a review in his or in their own name.
But Dupee, or his assignees representing him, may have been under obligation to protect the warehouseman, against whom the original action was brought, and might, with his assent, have assumed in his name the defence of that action. White v. Dolliver, 113 Mass. 400. The real party in interest...
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