309 Mass. 528 | Mass. | 1941
This is an action upon an account annexed
The plaintiff contends that the plea in abatement involved an issue of fact that was decided adversely to the defendant and that, no leave to answer over having been given to the defendant, G. L. (Ter. Ed.) c. 231, §§ 50, 53, the action went to judgment on January 29, 1940, or on February 19, 1940, in accordance with G. L. (Ter. Ed.) c. 235, § 1, and Rule 79 of the Superior Court (1932). Although the grounds upon which the decision overruling the plea was rendered are not disclosed by the record, we assume in favor of the plaintiff that this decision rested upon an issue of fact.
The principles of the common law giving the defendant a right to answer over where the issue joined upon a plea in abatement was one of law and the decision was in favor of the plaintiff, and rendering final judgment for the plaintiff if the issue raised by the plea was one of fact that was decided adversely to the defendant, Young v. Gilles, 113 Mass. 34; Commonwealth v. Carr, 114 Mass. 280; Young v. Providence & Stonington Steamship Co. 150 Mass. 550, have been somewhat relaxed by our statutes, which provide for a final judgment against the defendant where an issue of fact has been found against him upon a plea or answer in abatement, G. L. (Ter. Ed.) c. 231, § 50, unless he is permitted to answer over “by special order of the court for good cause shown, and not otherwise.” G. L. (Ter. Ed.) c. 231, § 53. Fisher v. Fraprie, 125 Mass. 472. Parks v. Smith, 155 Mass. 26. And the decision of the Superior Court upon a plea or answer in abatement is subject to revision upon exceptions or report. G. L. (Ter. Ed.) c. 231, § 111. Voss v. Sylvester, 203 Mass. 233. Sherman v. Werby, 280 Mass. 157. Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167, 168.
The plaintiff contends that the action went to judgment on Monday, January 29, 1940, in accordance with Rule 79 of the Superior Court (1932). The fact that no judgment
The plaintiff filed a discharge of all trustees on February 16, 1940, and this he contends cleared the path for the entry of judgment on the succeeding Monday, February 19, 1940. The decision upon the plea, which we have assumed was based upon an issue of fact, established the liability of the defendant and deprived it of a trial upon the merits, Boston Glass Manufactory v. Langdon, 24 Pick. 49; Good v. Lehan, 8 Cush. 301; Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98; Boright v. Williams, 87 Vt. 245; Foxwist v. Tremaine, 2 Saund. 207, (85 Eng. Rep. R. 996); Eichorn v. Le Maitre, 2 Wils. K. B. 367 (95 Eng. Rep. R. 865), (but now see supreme court of judicature act, 1873, 36 & 37 Viet. c. 66,) unless the judge permitted the defendant to answer over. The judge did not expressly authorize the defendant to file an answer and the defendant could not justly complain if the judge had refused to recognize its answer which had been filed without any order. Kaufman v. Buckley, 285 Mass. 83. Abbott v. Bean, 285 Mass. 474. But a defendant, after an adverse decision of an issue of fact upon a plea in abatement, has been permitted to
The action of a judge, other than the one who had heard the plea in abatement, • in hearing on February 12, 1940, the plaintiff's motion filed February 7, 1940, for the immediate entry of judgment under G. L. (Ter. Ed.) c. 231, § 59B, on the ground that the plaintiff was seeking to recover a debt to which he believed there was no defence, and in referring the case to the pre-trial session after granting the defendant the right to file a counter affidavit setting forth its defence, was taken in a proceeding instigated by the plaintiff and was utterly inconsistent with the contention now urged by him that the case had already gone to judgment. This counter affidavit was filed on February 13, 1940. The discharge of the trustees by the plaintiff on February 16, 1940, did not make the case, which was then pending for a hearing in the pre-trial session in accordance with an order of the court, ripe for judgment on February 19, 1940. Norcross v. Crabtree, 161 Mass. 55. Gilchrist v. Cowley, 181 Mass. 290. Kelly v. Foley, 284 Mass. 503. Patrick v. Dunbar, 294 Mass. 101.
It is true that the judge never made any formal order authorizing the defendant to answer over after the, decision on the plea in abatement, but we think, in view of all the proceedings taken subsequently to filing the answer before various judges in dealing with matters concerning the merits of the case and settling the issues to be tried, that it must be held that the filing of the answer was at least impliedly sanctioned by the judge. Burnham v. Haskell, 213 Mass. 386. Beal v. Lynch, 242 Mass. 65. Baskin v. Pass, 302 Mass. 338, 341.
The plaintiff, after commencing and prosecuting a series of proceedings to facilitate the progress of the case, all of which were based upon the underlying assumption that
The ease had not gone to judgment and there was no error in denying the plaintiff’s motion for an order for the entry of judgment. In view of what has been said, it is not necessary to discuss the refusal to grant any of the plaintiff’s requests for rulings. There was no prejudicial error in their refusal. It also follows that the plaintiff was properly nonsuited when he declined to proceed to trial.
Exceptions overruled.