Hyde v. Greenough
65 Mass. 87
| Mass. | 1853
Shaw, C. J.

This was a writ of entry to foreclose a mortgage, brought in the court of common pleas and at the first *88term removed to the supreme judicial court, and entered at the succeeding term of this court, upon the affidavit of the defendant, that he believed he had a good cause of defence, and that the property claimed exceeded in value the amount of $600. The defendant himself now insists that the case was not rightly removed, though it was his own act.

One ground is, that the ad damnum, in the writ is less than $600, and that the writ must govern. When the plaintiff seeks to recover only damages, the ad damnum may limit the amount in controversy; but in an action to foreclose a mortgage, the main thing sought to be recovered is the land. By the Jurisdiction Act, St. 1840, c. 87, § 2, it depends on the fact to be shown by affidavit, that the damages demanded or the property claimed shall exceed in amount or value the sum of $600.

But if it were doubtful on the original statute, on account of the peculiar manner in which the jurisdiction of actions for the foreclosure of mortgages is mentioned, we think that jurisdiction is now rightly given to this court by St. 1852, c. 51. The statute in terms includes it, but the objection is, that the legislature had no authority to vest such jurisdiction in case of an action commenced and actually removed to this court before it was made. The objection, if it have any force, is not that the legislature may not generally pass acts regulating the jurisdiction of courts, but that in the case of an action pending, it would injuriously affect an existing right. But the act in question, which went into operation April 26th, 1852, after the action had been entered in this court, provides in section 2, that all actions for the foreclosure of mortgages, now pending, and which have been removed from the court of common pleas to the supreme judicial court, and entered therein, shall be, &c. The clause refers to all such actions, in fact removed and entered; if it were limited to those legally removed, it would have been wholly unnecessary and useless. This action had been in fact removed and entered, was then and is now pending in this court, and we are now called upon to act judicially upon it.

Now it is clear that, by the existing law, no such action *89could have been removed but by the voluntary act, and the oath of the defendant, under a claim of right. Suppose this was an irregularity, it having been thus done with the consent of the defendant, and by him, a legislative act to confirm it and make it valid could not be injurious to his rights, but in support of his claim of right, and is not open to the objeetk n of the defendant, that it was not within the scope of legislative authority. The judgment of the court is that the action is within their jurisdiction.