Greenwood v. Bradford

128 Mass. 296 | Mass. | 1880

Gray, C. J.

The judges, either of the Superior Court or of this court, have no authority in vacation to order final judgment in actions at law which have been continued generally from one term to another, but only in those which have been continued nisi, that is to say, continued to the next term “ unless ” before that term some order shall be made as of the previous term. Gen. Sts. e. 112, §§ 31, 32. St. 1878, e. 145. The Gen. Sts. c. 133, '§ 7, and c. 115, § 14, authorizing “the court,” upon overruling a motion for a new trial, or in any case in which justice requires it, to enter judgment as of a former term, confer no authority upon a judge in vacation. “ The court,” as used in the statutes, means the court held, whether by one or by more judges, at a term established by law. Gen. Sts. a. 112, §§ 18, 26, 27, 28, 38; e. 114, §§ 2, 16; e. 115, §§ 13, 16, 20; c. 122, §§ 2, 3; e. 133, § 1. Whenever the Legislature has intended to authorize the judges to act in vacation, without regard to any term, it has made express provision to that effect; as in suits in equity, interlocutory orders at law or in divorce, writs of habeas corpus, and arraignments for murder. Gen. Sts. c. 113, §§ 6, 7,16, 18, 24; e. 129, §§ 59, 64; e. 144, §§ 3, 5. Sts. 1861, c. 91; 1862, e. 90; 1866, e. 148; 1869, e. 433, § 2; 1870, e. 119; 1874, e. 339. The full bench of this court has never assumed to exercise the power of ordering final judgments in vacation, without a continuance nisi, in actions at law. The law term for the Commonwealth, held at Boston on the first Wednesday of January in each year, is uniformly adjourned from time to time until the Tuesday before the first Wednesday of January in the following year; and 'in the law terms held in other counties all matters pending before the full court are always continued nisi by a general order at the end of the term. If an order, made at any term of either court, to continue a ease nisi, should by mistake not be recorded, it would of course be within the power of the court at a subsequent term- to order the record to be amended so as to conform to the truth. Fay v. Wenzell, 8 Cush. 315.

An appeal from a judgment of the Superior Court to this court lies only for error in matter of law apparent on the record. Gen. Sts. a. 114, § 10. Until the record is fully extended, the clerk’s docket is the record. Read v. Sutton, 2 Cush. 115. The record in this case does not show any continuance nisi fi om the June term. It does show that the order, for judgment as of the last day off that term, and the order to continue the case for judgment, were both made in vacation, and were therefore invalid. The case then stood continued generally to the nvxt term, like any other unfinished case not continued nisi; and the judgment for the plaintiff, which appears by the record to have been entered at the next term, is the final judgment in the case, and must be Affirmed.