102 Mass. 370 | Mass. | 1869
At common law, the action of trespass quare clausum fregit was local in its character, and could only be prosecuted in the county in which the closb was situated. This rule has been so far modified by legislation, that this kind of action may be commenced by a trustee process returnable in the county where the trustee resides, or it may be brought before a justice of the peace in the county in which the trespasser resides or is found, although the close itself may be in another county. The case at bar, however, comes under the general rule. Gen. Sts. c. 120, § 1; c. 142, §§ 1-4. Way v. Dame, 11 Allen, 357.
The motion to dismiss this action was granted in the court below on the ground that it was not a matter of discretion, but a matter of right, and that, as the objection relied upon went to the jurisdiction, the delay in filing it was not a waiver of the objection. It is however provided, that, “ when it appears on a trial that a local action has been brought in an erroneous venue, the court may of its own motion order a nonsuit to be entered, unless good cause shall be shown why the trial should be allowed to proceed.” Gen. Sts. c. 129, § 70. It is also provided that, ! when judgment is entered in a local action brought in an
The language of these two sections, especially when taken in connection with the report of the commissioners who first proposed them as a part of our system of practice, and as an amendment of previous rules, seems to leave it entirely to the discretion of the court, whether a local action brought in a county different from that designated by law shall be dismissed or shall proceed to trial. Tne language is manifestly permissive, and not imperative. To say that the court may order a nonsuit under such circumstances, unless good cause be shown to the contrary, is to leave the whole matter at the discretion cf the court. The motion in this instance was granted in the court
The motion to dismiss is therefore overruled, and the case is to stand for trial, unless the superior court in the exercise of a sound discretion shall see fit, on motion, to order a nonsuit to be entered; and, upon such a motion, it is manifest that the effect of the long delay, and the question of waiver, would be matters eminently proper to be considered.
Ordered accordingly.