Breed v. Breed

110 Mass. 532 | Mass. | 1872

Wells, J.

These proceedings were properly commenced under the St. of 1864, c. 306. The jurisdiction of the court remains as before; but the St. of 1871, c. 338, changed the mode of proceeding in some respects, and, by express terms, repealed the Statute of 1864, without reservation of pending proceedings. The St. of 1872, c. 107, provides that the Statute of 1871 “ shall not be taken to affect any proceedings which had already been commenced and were pending at the time of the passage of said act ” under the St. of 1864, e. 306.

In the interval, the proceedings were doubtless abatable. But it does not appear that any motion to abate was filed in court, or any objection made to the continuance of the commissioners in the investigation of the matters referred to them, and making up and returning their report into court. “ Upon the return of the commissioners’ report,” this objection is taken by one of the respondents. We infer that the objection was then made for the first time'; and that this was after the act of 1872, e. 107, had taken effect.

Assuming this to be so, we think the objection comes too late, and must be regarded as having been waived. It relates to the remedy, and not to the right. It affects the form and order of proceedings by which the matter is brought before the court for adjudication; not the jurisdiction of the court over the subject matter. Such objections are usually held to be waived, if the parties proceed to litigate upon the merits. They cannot take the chances of a favorable result upon the merits,, and at the same time retain, for the exigency of disappointment in that, the right afterwards to fall back upon an objection to the form of the proceedings. Campbell v. New Engand Ins. Co. 98 Mass. 381, 400. Blake v. Bayley, 16 Gray, 531. Crosby v. Blanchard, 7 Allen, 385. Kent v. Charlestown, 2 Gray, 281. Clark v. Montague, 1 Gray, 446.

Statutes relating to remedy only, or to the mode and form of proceeding, are sometimes allowed to have a retroactive effect, if so intended. Jewett v. Phillips, 5 Allen, 150. Whether the St. of 1872, e. 107, would, by its own force alone, have given validity to pending proceedings like these, which had been rendered invalid by a previous statute, we need not determine; because we are satisfied that whatever difficulty might otherwise have been found in giving it that effect is removed by the conduct of the parties in regard to these proceedings, whereby they ought to be precluded from now setting up the invalidity which the statute seeks to remedy.

Our conclusion is, therefore, that the proceedings should be maintained ; and accordingly they are to stand for further hearing upon the report of the commissioners.