153 Mass. 104 | Mass. | 1891
In the Colonial Laws it appears that the General Court in 1665 ordered “ That henceforth no action shall be entered after the first day of the court is ended. And in case any plaintiff shall delay his entry longer than the first forenoon of the court’s sitting, every such person or persons shall pay double entry money.” Anc. Chart. 45. Colonial Laws of 1672, (Whitmore’s ed.) 2. By the Province Laws it was provided that “ No action be entered after' the first day of the court’s sitting.” Prov. St. 1727-28, c. 10, § 2, 2 Prov. Laws, (State ed.) 464. Prov. St. 1732-33, c. 6, § 2, 2 Prov. Laws, (State ed.) 656. Prov. St. 1738-39, c. 4, § 2, 2 Prov. Laws, (State ed.) 939. Prov. St. 1742-43, c. 13, § 2, 3 Prov. Laws, (State ed.) 29. Anc. Chart. 539. This last was a perpetual statute, and was, perhaps, confined to the Court of Common Pleas and the Court of General Sessions of the Peace. These courts, as well as the Superior Court of Judicature, were empowered to make rules of procedure not repugnant to the laws of the Province. Prov. St. 1701-2, c. 5, § 3, 1 Prov. Laws, (State ed.) 464.
By the St. of 1782, c. 9, establishing a Supreme Judicial Court within the Commonwealth, no express provision was made con
Under the St. of 1851, c. 233, § 13, it was held that an action must be entered, if at all, on the return day of the writ, or “ the next day thereafter.” Hilliard v. Sawtelle, 12 Cush. 222. Kidder v. Browne, 9 Cush. 400. The language of the statute is, that, “ on the return of a writ, if a declaration .shall have been inserted therein, or filed pursuant to the eighth section, the action shall be entered on the docket by the clerk upon motion of the plaintiff, or his attorney, made on the return day or the next day thereafter, and upon the payment of the fees of the clerk
The existing rule of the Supreme Judicial Court, as amended on January 12, 1886, is as follows: “No civil action shall be entered after the return day, unless by consent of the adverse party and by leave of the court, or unless the court shall allow the same for sufficient cause.” Common Law Rules, Rule I., 136 Mass. 590, and 140 Mass. 610. See 3 Dane Abr. c. 75, § 11, and'manuscript rule of 1779 ; Regulæ Generales, 16 Mass. 370, Regula I.; Common Law Rules, Rule I., 24 Pick. 383, 14 Gray, 338, and 104 Mass. 556. The Court of Common Pleas and the Superior Court have at times had a somewhat similar rule, and, as a matter of practice, actions have in modern times been entered late, during the return term, in these courts, and in the Supreme Judicial Court, except while the St. of 1851, c. 233, was in force.
The Public Statutes provide the time when a writ shall be returnable, not when it shall be entered. Pub. Sts. c. 161, § 23. A suit is brought when a writ is filled out and has been put into the hands of an officer for service, and for certain purposes the courts have jurisdiction over a suit before the action has been entered. See Pub. Sts. c. 161, § 121; Harding v. Downs, 110 Mass. 56. If the service of process is insufficient, the court can issue further processes, to be “ served in such manner as may be therein directed.” Pub. Sts. c. 161, § 84. But a failure to enter a writ is a discontinuance or abandonment of the action; Cardi
It appears from this examination that the Legislature many years ago abandoned the policy of absolutely requiring actions at law in the Supreme Judicial Court, Court of Common Pleas, or Superior Court to be entered on the return day, and left the subject to be regulated by the rules and practice of the courts; and that, except while the St. of 1851, c. 233, was in force, the practice for a long time was, on sufficient cause shown, to permit late entries at any time during the return term, but not afterwards.
The St. of 1885, c. 384, changed the return days of writs, but it contains no express provision concerning the entry of actions. It abolished terms, but provided that the courts should always be open. It was undoubtedly the intention of this statute, by abolishing terms, that the courts should not be confined to the powers which courts of common law exercise in vacation, but should in general have at all times the power of such courts during term. This is shown especially by §§ 2, 3, 6, 10, 11, 13, and 14 of that statute. There is nothing in the statute which indicates any intention of giving the courts any new power over the entry of actions, or of depriving the courts of the power which they had of permitting an action to be entered late, although the statute is express upon the subject of entering appeals, without, however, repealing the provisions of the Public Statutes whereby appeals may be entered late on petition. That some power should exist for permitting actions to be entered late is reasonably necessary for the administration of justice, but the power should have some limits, and the time given by the statute for entering an appearance, or a default, or a judgment on default, shows that the time for entering an action late ought not to be indefinitely extended. For the purpose of returning writs and processes, the first Monday of every month has, under this statute, become like the first day of the term under previous statutes. As under the old practice the writ could be entered at the return term, and not afterwards, and as a complaint by the defendant to recover costs for a non-
In the present case the return day of the writ was the first Monday of November, 1889. The motion to enter the action late was filed January 21,1890. We think that the presiding justice rightly ruled, as matter of law, that the court, when the motion was filed, had no power to allow the writ to be entered.
Order denying the motion affirmed.