Dearborn v. Mathes, 128 Mass. 194

Dearborn v. Mathes

128 Mass. 194 | Mass. | 1880

Gray, C. J.

The objection that the original action could not be maintained, for want of the issue of letters of administration to the plaintiff in this Commonwealth before it was brought, could not be availed of without being pleaded, and affected only the capacity of the plaintiff to sue, and not the jurisdiction of the court. Langdon v. Potter, 11 Mass. 313. Wooldridge v. Bishop, 7 B. & C. 406.

*196As the objection might have been, and was not, taken before verdict, it could be made a ground for a new trial only at the discretion of the presiding judge, and not as a matter of right; and a ruling thereon, at that stage of the cause, though a ruling in matter of law, could not be brought to this court for revision, either by bill of exceptions or by report of the judge. Kidney v. Richards, 10 Allen, 419. Aldrich v. Springfield, Athol Northeastern Railroad, 125 Mass. 404. Upon a petition for review, which is in substance and effect an application for a new trial after judgment, the right of exception must be equally limited. The cases in which this court has entertained exceptions to rulings on motions for a new trial or petition for a review have been of questions of law affecting the jurisdiction and powers of the court below over the petition or motion, or the admissibility of evidence at the hearing thereon, or which could not have been raised before the verdict. Davenport v. Holland, 2 Cush. 1, 11. Boston v. Robbins, 116 Mass. 313, 315. Tripp v. Brownell, 2 Gray, 402. Woodward v. Leavitt, 107 Mass. 453, 460. Commonwealth v. Tobin, 125 Mass. 203, 208.

It may be added that, letters of administration having been actually taken out in this Commonwealth before judgment, the original defendant is in no danger of suffering any injustice, for those letters relate back to the death of the intestate, at least in such sense as to oblige the plaintiff to account in the regular course of administration for anything received under the judgment. Alvord v. Marsh, 12 Allen, 603. Hatch v. Proctor, 102 Mass. 351. Exceptions overruled.