Merritt v. Marshall

100 Mass. 244 | Mass. | 1868

Wells, J.

The verdict of a sheriff’s jury having been returned and accepted by the superior court, and judgment entered thereon, this writ of audita querela is brought to prevent its enforcement. The ground of complaint is, that the subject matter of the original suit has been determined by a submission and award in the country, and full satisfaction rendered and accepted. That suit was a proceeding for damages occasioned by flowage under the mill acts ; and the award and payment were made after verdict in the superior court and an order thereon for a sheriff’s jury, but before the sheriff’s jury were called out. If the present plaintiff has been improperly deprived of an opportunity to avail himself of his defence of payment; or, without fault or neglect on his own part, has had no such opportunity, he may have relief in this mode. Lovejoy v. Webber, 10 Mass. 101. Faxon v. Baxter, 11 Cush. 35. Goodrich v. Willard, 11 Gray, 380.

Upon examining the facts of this case, we find that neither the submission, the award, nor the receipt of payment, upon which the plaintiff relies, purports to make any disposition of the suit then pending. No provision was made for the costs of that suit; and the plaintiff, who was then defendant, took no precaution to stipulate for its discontinuance or a discharge of the judgment which had been rendered upon the issue tried in the court. Whether this neglect arose from a desire to evade the payment of those costs, or from mere ignorance or inadvertence, is not stated in the report. Upon seeking to avail himself of his payment, to procure the discontinuance of the proceedings in the superior court, no objection was made by the then plaintiff, and the court allowed him full opportunity to do so, in the manner sought by him, upon condition that he would take no costs and pay the plaintiff’s costs up to that time. This was within the power and discretion of that court. Gen. Sts, c. 129, § 41; c. 156, § 21. We are to presume that that disci etian was rightly exercised, in view of all the facts of the case then before that court. And upon the facts as they now appear to us, our opinion concurs with the superior court, upon the question as a matter of discretion. The plaintiff in that suit also proposed, upon payment of his costs, to enter “ neither party” in the case. This opportunity to avail himself of his payment, for his defence against any further liability for damages, was not only neglected, but deliberately rejected.

The plaintiff in that suit, having obtained in the regular course a verdict from the sheriff’s jury, now remits all but nominal damages, seeking to avail himself of bis judgment only to enforce the payment of his costs. To this, we think, in justice and equity, he is entitled; and therefore that the present plaintiff has no grievance, suffered or apprehended, for which he ought to maintain this writ. If the costs have been increased by the subsequent proceedings, it is due to the fact that he chose to make that increase necessary by his effort to escape from his liability, rather than to abide by the judgment of the superior court in the reasonable exercise of its discretion.

Exceptions overruled.