Cumming v. Jacobs

130 Mass. 419 | Mass. | 1881

Colt, J.

The statute of limitations is pleaded in defence of this action. The cause of action accrued in December 1863, and this suit was commenced in May 1878. The plaintiff relies on the provisions of the Gen. Sts. e. 155, § 11, by which it is enacted that, if any action is duly commenced, within the time limited in that chapter, and is avoided or defeated “ for any matter of form,” the plaintiff may commence a new action, within one year after the termination of the original suit.

It appears by the bill of exceptions that a previous suit for the same cause was commenced within six years, and before 1870, and that it was suffered to remain in court in the county of Essex until April term 1878. On the first day of that term, upon the calling of the entire docket, according to the custom in that county, in the absence of the plaintiff’s counsel, and on motion of the defendant, the case was dismissed by an entry of “ neither party.” The plaintiff afterwards, and during the same term, moved to have the entry stricken off, and the case restored' to the docket. The motion was denied by the Chief Justice, and thereupon the present action was brought in the Superior Court for the county of Suffolk.

The plaintiff contends that, because the first action was dismissed for a cause not affecting the merits, it must be deemed to have been dismissed “ for matter of form,” within the meaning of the statute. The statute is remedial, and its words are not to be construed unfavorably to the plaintiff. It has indeed been said that the signification of the word “ form ” is not lim ited merely to the manner in which parties state their claims or grounds of defence, but “ extends to what has been, by legislative enactment or other legitimate authority, made the stated method or particular mode ” in which suits shall be conducted. It was accordingly held in Allen v. Sautelle, 7 Gray, 165, that the dismissal of an action, because of the accidental omission of the clerk of the court to enter it seasonably on the docket, was a dismissal for matter of form. And in Woods v. Houghton, 1 Gray, 580, an abatement or dismissal for want of jurisdiction of a trustee process brought in the wrong county was held to be an abatement or dismissal for matter of form. On the other •hand, where a plaintiff failed to file, in compliance with the order of the court, a sufficient statement of reasons in avoidance of a discharge in insolvency, on which the defendant relied, and went to trial on an insufficient statement, and then to avoid the difficulty became nonsuit by leave of court, it was held that his action had not been defeated by any matter of form. Swan v. Littlefield, 6 Cush. 417. See also Coffin v. Cottle, 16 Pick. 383; Bullock v. Dean, 12 Met. 15.

The plain purpose of the statute is to relieve a person who, in the exercise of due diligence, within the time limited by the general statute of limitations, has attempted to enforce a claim by suit, and has failed in such attempt by reason of some matter of form, which can be remedied in a new proceeding, and which does not affect the merits of his case. It was not intended to encourage default or negligence in the prosecution or conduct of a suit duly and properly commenced and legally pending in court. It was the duty of the plaintiff herself, or by her attorney, to be present in court at the calling of the docket; her absence unexplained was sufficient cause for entering a nonsuit or dismissing the action. There was ample opportunity, on the motion to have the case restored, for the plaintiff to show that the absence was not due to her neglect, or the fault of her attorney, and the overruling of the motion implies that there was such neglect as to warrant the court in refusing to grant the motion. A party who has lost his standing in court by a nonsuit or default, entered for his failure to appear and prosecute or defend the action, cannot be said to have been defeated ir_ his cause by any matter of form, within the meaning of the statute.

Exceptions overruled.