177 Mass. 404 | Mass. | 1901
This is an action of contract, originally brought upon an account annexed, but amended in the Municipal Court by adding a count upon a judgment obtained in Philadelphia, before the beginning of this action, upon the same account. The latter count alone was relied upon when the case was tried on appeal in the Superior Court, and judgment for the plaintiff was ordered upon it. The case comes here on report, and presents the question whether the allowance of the amendment by the Municipal Court was reopened by the appeal of the plaintiff to the Superior Court from a final judgment for the defendant, no other appeal having been taken, and whether, if the question is open, the allowance, was right. The judge ruled that, if the question was open, the amendment should be allowed. It is moved that the report be dismissed because the judge did not rule whether the question was open, and therefore, as it is said, found for the plaintiff on the judgment without determining whether the judgment was before him or not. But the ruling meant an order that the amendment should stand if ,an order was proper. If an order was not proper the amendment was established. Either way the case was before him on the judgment.
We shall follow the course adopted at the trial and shall not decide whether the appeal opened the right of the Municipal Court to allow the amendment. We have no doubt, other' than that raised by a few decisions of other courts, McDermid v. Tinkham, 53 Vt. 615 ; Latine v. Clements, 3 Kelly, (Ga.) 426 ; see McVicker v. Beedy, 31 Maine, 314, 317 ; Anderson v. Mayers, 50 Cal. 525, that the amendment was within the powers given by Pub. Sts. c. 167, § 42. See § 85. The count' expressly remitted the costs recovered in Philadelphia, and as to the residue of the claim, the technical change to res judicata did not prevent its being “ the cause for which [the action] was intended to be brought,” in the large and popular sense in which those words are used in the sections cited above. King v. Burnham, 129 Mass. 598. Henderson v. Staniford, 105 Mass. 504, 508. Goodrich v. Bodurtha, 6 Gray, 323. Barker v. Burgess, 3 Met. 273. Downer v. Shaw, 23 N. H. 125.
Another question was raised by a plea of Us pendens, overruled in the Municipal Court, as to which the judge ruled that if the matter was open the plea should be overruled. Concerning this it is to be remarked that the plea was pleaded only to the second count, whereas the count on the judgment, which, as we have said, was the only one on which the plaintiff relied, was the third. We are disposed to inquire no further, as the supposed lis pendens was the very suit in which the judgment relied on was rendered, so that if the plea was intended to be pleaded to the third count, the defendant was under a mistake and his plea would have done him no good on the facts, if it had been tried. The proceedings which led the defendant to think the case still unfinished were proceedings by trustee process to obtain satisfaction of the judgment. They are said to have been discontinued. Probably the plea would have been equally little help to the defendant on the law. Craig Silver Co. v. Smith, 163 Mass. 262, 266. It is unnecessary to consider stillyOther objections. Judgment for the plaintiff.
