| Mass. | May 25, 1915
This is an appeal from a final decree dismissing a bill of complaint brought by the Boston and Maine Railroad to enjoin Jayme M. D’AImeida and his attorneys from enforcing an alias execution for the uncollected balance of a judgment in favor of D’Almeida, entered on the verdict for $6,300 recovered by him in D’Almeida v. Boston & Maine Railroad, 209 Mass. 81" court="Mass." date_filed="1911-05-18" href="https://app.midpage.ai/document/dalmeida-v-boston--maine-railroad-6431454?utm_source=webapp" opinion_id="6431454">209 Mass. 81.
It appears from the bill of complaint that after the rescript sent by this court pursuant to the opinion in D’Almeida v. Boston & Maine Railroad, 209 Mass. 81" court="Mass." date_filed="1911-05-18" href="https://app.midpage.ai/document/dalmeida-v-boston--maine-railroad-6431454?utm_source=webapp" opinion_id="6431454">209 Mass. 81, the plaintiff in that case received $3,671.08 from the Boott Mills apart from the fees of the deputy sheriff; that he indorsed upon the execution taken out in D’Almeida v. Boston & Maine Railroad that he had received from that defendant $3,092.49. The plaintiff’s attorneys made this further indorsement on that execution: “Having received from the Boott Mills the full amount of the judgment against it in No. 17649, Jayme M. d’Almeida, adm’r vs. Boott Mills, and being of opinion that, in view of the opinion of the Supreme Judicial Court in these cases, we are not authorized to proceed further in the collection of this execution, we hereby return the same to Court.” Doubtless this action of the plaintiff’s attorneys was taken by reason of the statement in D’Almeida v. Boston & Maine Railroad, 209 Mass. 81" court="Mass." date_filed="1911-05-18" href="https://app.midpage.ai/document/dalmeida-v-boston--maine-railroad-6431454?utm_source=webapp" opinion_id="6431454">209 Mass. 81, 87, that the plaintiff “could have but one satisfaction in damages.”
On November 13, 1914, the plaintiff’s attorneys in the original action of D’Almeida v. Boston & Maine Railroad took out an alias execution and it is alleged in the bill of complaint now before us that they intend to collect under this alias execution the unpaid balance of the judgment entered on the verdict for $6,300 in the case of D’Almeida v. Boston & Maine Railroad, 209 Mass. 81" court="Mass." date_filed="1911-05-18" href="https://app.midpage.ai/document/dalmeida-v-boston--maine-railroad-6431454?utm_source=webapp" opinion_id="6431454">209 Mass. 81. We assume that this alias execution was taken out in consequence
The bill now before us is based on two grounds: First, on the ground that the statement in D’Almeida v. Boston & Maine Railroad, 209 Mass. 81" court="Mass." date_filed="1911-05-18" href="https://app.midpage.ai/document/dalmeida-v-boston--maine-railroad-6431454?utm_source=webapp" opinion_id="6431454">209 Mass. 81, 87, (namely, that there could be “but one satisfaction in damages,”) was correct; and secondly, on the ground that whether it be correct or not, the original case of D’Almeida v. Boston & Maine Railroad was tried together with the case against the Boott Mills on the basis that there could be but one satisfaction in damages, and that the attorneys for D’Almeida assented to that proposition and argued that to the jury in connection with the amount of the penalties which they should find had been incurred by the two defendants, namely, the Boston and Maine Railroad and the Boott Mills.
One of the grounds on which the defendant has insisted that the decree dismissing the plaintiff’s bill was correct is that the remedy of the Boston and Maine Railroad, even if it is correct in its contentions stated above or in either of them, is not by a separate bill in equity. In that connection the defendant relies on Fuller v. Cadwell, 6 Allen, 503, McBride v. Little, 115 Mass. 308" court="Mass." date_filed="1874-06-23" href="https://app.midpage.ai/document/mcbride-v-little-6417716?utm_source=webapp" opinion_id="6417716">115 Mass. 308, 310, Spaulding v. Backus, 122 Mass. 553" court="Mass." date_filed="1877-06-29" href="https://app.midpage.ai/document/spaulding-v-backus-6418937?utm_source=webapp" opinion_id="6418937">122 Mass. 553, 554, Payson v. Lamson, 134 Mass. 593" court="Mass." date_filed="1883-04-03" href="https://app.midpage.ai/document/payson-v-lamson-6420932?utm_source=webapp" opinion_id="6420932">134 Mass. 593, 599, Worcester v. Lakeside Manuf. Co. 174 Mass. 299" court="Mass." date_filed="1899-10-17" href="https://app.midpage.ai/document/city-of-worcester-v-lakeside-manufacturing-co-6426836?utm_source=webapp" opinion_id="6426836">174 Mass. 299, 302, Amherst College v, Allen, 165 Mass. 178" court="Mass." date_filed="1896-01-04" href="https://app.midpage.ai/document/trustees-of-amherst-college-v-allen-6425480?utm_source=webapp" opinion_id="6425480">165 Mass. 178.
Where a party threatens to seize under an execution land which is not subject to be seized under the execution, a bill in equity can be maintained to prevent a cloud being created upon the title ' to that land. That was the case in the two decisions relied upon by the plaintiff, O’Hare v. Downing, 130 Mass. 16" court="Mass." date_filed="1880-11-26" href="https://app.midpage.ai/document/ohare-v-downing-6420106?utm_source=webapp" opinion_id="6420106">130 Mass. 16, and Stevens v. Mulligan, 167 Mass. 84" court="Mass." date_filed="1896-10-24" href="https://app.midpage.ai/document/stevens-v-mulligan-6425747?utm_source=webapp" opinion_id="6425747">167 Mass. 84. In those cases there was no question as to the executions having been properly issued. The objection in each of those cases was that the party taking it out was undertaking to use it in a way in which he had no right to use it, and in a way which would create a cloud on the plaintiff’s title to his land. That is a matter which the court issuing the execution
In the case at bar the execution has in fact issued. If the Boston and Maine Railroad is correct in its contention that no alias execution ought to issue under the circumstances stated in the bill of complaint now before us, its remedy is to file a motion to bring forward the original action (in which the judgment was rendered on which the alias execution in question has been issued) and to move to set aside for irregularity the execution which in fact has been issued. Of the right of the court to entertain such a motion there can be no question. See for example Barker, J., in Chesebro v. Barme, 163 Mass. 79" court="Mass." date_filed="1895-02-26" href="https://app.midpage.ai/document/chesebro-v-barme-6425168?utm_source=webapp" opinion_id="6425168">163 Mass. 79, 81, where he says: “The general principle is, that, when the judgment is recovered in a court having jurisdiction, and the execution is issued by the proper officer, irregularities, either in the mode of issuing it or in the document itself do not make it void; and that it may be dealt with by the court upon motion of either party, and amended or annulled as justice may require.” To the same effect see 2 Tidd’s Pract. (4th ed.) 1032, 489, 513, 994 and 1145.
All the matters which are made the basis of this bill in equity are matters which could be made the foundation of a motion by the Boston and Maine Railroad to set aside the execution against it which has been taken out by the attorneys for D’Almeida.
We do not see how this separate suit in equity can be amended into a motion in the original action at law. The decree dismissing the bill should be without prejudice; and so modified it should be affirmed. It is ■
So ordered.