| Mass. | Mar 15, 1842
It is of great importance, that all the rules ot
The present case comes before the court on a motion to dismiss the action, on the ground that the. plaintiff, having taken an appeal to this court from the court of common pleas, has failed to enter his appeal, in any of the modes warranted by law; that he has thereby discontinued his action, has no day in court, and therefore that the court can give no judgment. The facts, on which the motion is founded, appear by the records and docket of the court; and they are summed up, in the agreed statement of facts. Judgment was entered in the court of common pleas in January 1840, on common demurrer, from which the plaintiff claimed an appeal in general terms, not giving notice of his claim to enter it at any adjourned term of this court. By the general rules of law in this Commonwealth, an appeal to a superior court, in civil actions, is an appeal to the appellate court, at its next regular term, as fixed and stated by law. But there is a provision in the Rev. Sts. c. 81, § 48, that appeals from the court of common pleas, in civil actions, may, at the option of the appellant, be entered at any session of the supreme judicial court held by adjournment, before the stated term ; provided that the appellant, at the time of claiming the appeal, give to the adverse party written notice of his intention so to enter the appeal. I am not aware that there hi ;í*er ?.ry judi
But this question is immaterial in the present case. If on the 8th day of February, on which the appeal was entered, there was a session by adjournment, the entry of the appeal at that session could not be. good, because the appellant, at the time of the appeal, had given no notice in writing to the adverse party of his intention so to enter it. Such notice, being in the nature of process, by which a party is called into court, to answer judicially, the rule requiring it is to be construed with reasonable strictness. A verbal notice, when a written one is required, would be no more sufficient, than a verbal notice by a person to another of his intention to enter an action against him, without service and return of legal process. Besides ; the appellee is entitled to such notice, under the hand of the other party, to enable him, when he attends at the time and at the court snecified, and the appellant does not enter his appeal, to enter his
We therefore consider the entry made on the 8th of February a mere void act, of which the appellee was not bound to take notice. The appeal then was to the next regular term of this court, March 1840. The plaintiff might then have entered his appeal, and failing to do so, the defendant might have entered his complaint for affirmation of judgment. But neither was done. It stood over, without farther action, to November term 1840. At that term, the appellant moved the court, sitting at nisi prius, for leave to strike off the action, by stating it as a misentry, and to enter it again, as of that term. Written notice of tnis motion was given to the defendant’s attorneys, who did not appear; and, without opposition, the motion was allowed. This was in effect two motions by the plaintiff, one to dismiss his appeal, as a misentry ; the other for leave to enter his appeal, after the time allowed by law, on the ground that it had been omitted by mistake or accident. In regard to the former, there could be no objection to the dismissal of the appeal, on his own motion ; but it was an admission on his part, that the entry of the appeal in February 1840 was wrong ; and it was a voluntary act, by which he waived the right of asking the opinion of the court upon its regularity.
Whether the entry of the appeal as of that term could be allowed on that motion, is the question. The authority of the court to allow an appeal, after the term to which it is regularly taken, and when the parties are out of court, by discontinuance, by a failure then to enter it, is a statute power, and the terms of the statute must be complied with. The appellant contends that these terms were substantially complied with.
The provision, by the Rev. St. c. 81, § 34, is, that when
The word “ petition,” as used in judicial proceedings, and uniformly, as we believe, in the- revised statutes, is used to describe an application in writing, in contradistinction to a motion, which may be viva voce. This meaning, we think, is implied by the terms, “ presented ” and “ filed.” The same is more distinctly implied in St. 1791, c. 17, § 1, from which this provision of the revised statutes is taken. There it was provided, that such petition should be “ exhibited ” &c. In the analogous case of petition for review, it is required that the petition be indorsed; c. 99, § 29 ; which would put the matter beyond doubt in that case, if doubt existed.
But further ; we think it must be an application in writing, because notice is to be issued thereon to the adverse party. By the discontinuance, the cause is at an end ; the parties are out of court; the authority of the attorney of record in the cause, in contemplation of law, ceases with the termination of the suit. The course indicated by the statute is intended to bring them before the court by a new process. The foundation of the proceeding is the petition ; an order of notice is to go to the party, to be regularly served and returned. We are not aware that there is any express direction that notice be given ; but notice, in such case, is of common right. In the analogous case of petition for review, we believe there is no direction that notice be given, except by implication. The Rev. Sts. c. 99, § 21, provide that the petition maybe filed before the court in one county, and that the order of notice issued thereon, may be made returnable in another. But in one of the earlier statutes, on the same subject, St. 1788, c. 11, § 1, the court “ on due notice to the adverse party, are empowered,” &c. The same statute, § 3, first provided for the case where an appeal had been or might be
Such being, in our opinion, the requisites of the statute, it is very clear that a viva voce motion, and a notice to the former attorneys, was not a compliance with them ; the case was coram non judice, and the order, allowing the entry of the appeal at that term, was void. Whether the plaintiff has any remedy, or whether his case comes within any of the saving clauses of Rev. Sts. c. 120, §11, we give no opinion. The case is dismissed from the docket, without costs to either party.