206 Mass. 408 | Mass. | 1910
By Rev. Sts. c. 112, § 15, which was re-enacted without any material change in Gen. Sts. c. 146, § 18, Pub. Sts. c. 187, § 15, and R. L. c. 193, § 2, proceedings upon writs of error, whether relating to the assignment of errors, the pleadings, the judgment, and all other matters not expressly provided for, are to be according to the course of the common law, except as modified by the practice and usage in this Commonwealth. Notwithstanding the rule of the common law was to the contrary, it is settled in our practice, that when a writ of error is used to review a final judgment, errors of fact which render the judgment invalid may be joined in the assignment with errors of law.
The merits of the original action, having been determined by the judgment, are not involved, and the only question presented is, whether the judgment should be reversed or affirmed. hathaway v. Qlarh, 7 Pick. 145. Raymond v. Butterworth, 139 Mass. 471. Sliot v. McOormieh, 141 Mass. 194. Johnson v. Waterhouse, 152 Mass. 585. R. L. c. 193, § 4.
When served with the scire facias in which a copy of the assignment of errors must be inserted, the defendant in error may traverse the errors of fact, and by demurrer put in issue errors of law shown on the face of the record. If instead he resorts to the common plea of in nullo est erratum, he admits the truth of the assignment of errors of fact so far as they are legally assignable, and that the record is true as to the assignment of errors of law, while denying that either is sufficient to reverse the judgment. foodridge v. Ross, 6 Met. 487. Riley v.
The defendant in error, however, neither traversed the facts, nor pleaded that there was no error of law in the record, but under the procedure sanctioned by Eliot v. McCormick, 141 Mass. 194, demurred specifically to the several assignments as not disclosing any invalidity in the proceedings and because, the exclusive remedy of the plaintiffs in error being by appeal, this court had no jurisdiction to entertain the writ. Martin v. Commonwealth, 1 Mass. 347. By the demurrer all matters well pleaded were admitted, and issues of law alone were raised, which under R. L. c. 156, § 6, could be heard and determined only by the full court, where they were immediately pending. It was not therefore within the authority of a single justice either to decide, or even to report or reserve them. Tufts v. Newton, 119 Mass. 476. Bailey v. Edmundson, 168 Mass. 297. Conto v. Silvia, 170 Mass. 152.
In the questions presented the primary inquiry is, whether the plaintiffs in error could have appealed from the judgment which they seek to reverse. The defendant in error having recovered judgment in the Municipal Court against the plaintiffs in error, the execution was returned satisfied by a levy and sale under R. L. c. 178, §§ 1, 26, of certain real estate alleged to belong to one of the debtors, although standing in the name of a stranger. But the judgment creditor, who was the purchaser, having failed within one year from the return of the execution to begin suit to recover possession as required by § 47 of this chapter, judgment was ordered for the tenant in the writ of entry which she subsequently brought in the Superior Court. It appearing by the record that the original judgment had been satisfied, she could not maintain an action of contract, but must resort to a writ of scire facias under R. L. c. 178, § 51, to vacate the return of satisfaction, and for the award of a new execution. Dennis v. Arnold, 12 Met. 449. Perry v. Perry, 2 Gray, 326. Wareham Savings Bank v. Vaughan, 133 Mass. 534.
This remedy when first provided by the St. of 1785, c. 6, was discretionary, and granted only on application to the court from which the execution issued, but since the Rev. Sts. c. 73, § 21, the writ is purchased at the clerk’s office and issues as of right.
It is apparent from these fundamental characteristics, that scire facias to revive a judgment although issued upon an existing record, is a suit at law in the nature of an original action. Sigourney v. Stockwell, 4 Met. 518, 521. Commonwealth v. Stebbins, 4 Gray, 25, 26. Ensworth v. Davenport, 9 Conn. 390, 392. White v. Washington School District, 45 Conn. 59, 60. Potter v. Titcomb, 13 Maine, 36. Greenway v. Dare, 1 Halst. Ch. 305. Gonnigal v. Smith, 6 Johns. 106. Kirkland v. Krebs, 34 Md. 93. Humiston v. Smith, 21 Cal. 129. Bryant v. Smith, 7 Cold. (Tenn.) 113. Winder v. Caldwell, 14 How. 434. Owens v. Henry, 161 U. S. 642. Grey v. Jones, 2 Wils. 251. Fenner v. Evans, 1 T. R. 267. Parrell v. Gleeson, 11 Cl. & F. 702.
By R. L. c. 173, § 97, an appeal may be taken from the final judgment of a police, district or municipal court by the party aggrieved to the Superior Court. The plaintiffs in error contend, that the statute is inapplicable as the record of the original judgment upon which the execution must issue cannot be transmitted. But this is not necessary. The appeal transmits only the subject matter of the suit, and the question is, whether, upon the pleadings and the evidence which may be offered, the plaintiff is entitled to specific relief. Jarvis v. Mitchell, 99 Mass. 530, 532. When this has been decided, the appellate court causes an attested copy of its order, which is treated as a judgment, to be sent to the court below, where, if the plaintiff prevails, execution issues upon the record. Yetten v. Conroy, 165 Mass. 238, 239. Parke v. Murdock, 177 Mass. 453, 454. We are not unmindful, that in scire facias against a trustee in foreign attachment the execution, if an appeal is taken, issues from the court above. The process, however, is regulated by the provisions of the statute, under which the scire facias forms with the original suit but one connected continuous proceeding. The appeal consequently transfers the entire record, although the only question raised is, whether the trustee shall satisfy from his own property the amount remaining unsatisfied on the judgment against the principal defendant. R. L. c. 189, §§ 45-49. Thompson v. Lowell Machine Shop, 4 Cush. 431. Thayer v. Tyler, 10 Gray,
It becomes unnecessary to consider the remaining grounds of demurrer, for it was early held, that if there was a right of appeal in a civil action of which the party aggrieved might have availed himself, a writ of error ought not to be entertained. The remedy by appeal is deemed to be exclusive, rather than merely cumulative. Savage v. Gulliver, 4 Mass. 171, 178. Champion v. Brooks, 9 Mass. 228. Gay v. Richardson, 18 Pick. 417. Monk v. Guild; 3 Met. 372. Ellis v. Bullard, 11 Cush. 496, 498. Compare Day v. Laflin, 6 Met. 280, 284; Peck v. Hapgood, 10 Met. 172, 175. The plaintiffs in error not only had the opportunity to appeal, but appear to have appealed from the judgment ordering a new execution. If the appeal had been prosecuted, all the questions raised in the assignment of errors so far as material could have been tried in the Superior Court, whose rulings of law, if adverse, might have been reviewed by this court. The remedy thus provided, and to which they at first resorted, having been ample for their protection, the writ of error must be dismissed.
So ordered.
