117 Mass. 281 | Mass. | 1875
This case is governed by that of Thayer v. Goddard, 19 Pick. 60. The General Statutes upon the subject of reviews, though expressed in a more condensed form than the Revised Statutes, do not appear, and cannot fairly be construed, to have been intended as limiting the power of the courts to reverse the former judgment, in whole or in part, or to render such other judgment as may be required to do full justice to each party. Gen. Sts. c. 126, § 8; c. 146, §§ 19, 32. Fuller v. Storer, 111 Mass. 281. Exceptions overruled.
The writ of review was then issued, returnable at October term 1873 of the Superior Court. On the return day, and after entry
By the Court. The question presented by these exceptions is not properly before us, and we cannot therefore give any judicial opinion upon it. Exceptions to the rulings made by the Superior Court in the course of proceedings in any case cannot be entered in this court until after final disposition in the court below of the case in which the exceptions are taken. Commonwealth v. Sallen, 11 Gray, 52. Bursley v. Barnstable, 14 Gray, 106. Marshall v. Merritt, 13 Allen, 274. Commonwealth v. Gloucester, 110 Mass. 491. No final judgment having been rendered on the writ of review, the present entry must be
Exceptions dismissed
At April term 1874 of the Superior Court, the plaintiffs in review renewed their motion to reverse the judgment on the scire facias, and to discharge them from their liability as bail; and further asked that if, upon the reversal of that judgment, it should appear necessary that they should make surrender of the principal other than as already made, they might be allowed time in which to make such surrender. But Bacon, J., “ ruled pro forma as matter of law that the surrender already made was invalid because the judgment in scire facias was not reversed, and that the judgment could not be reversed solely for the purpose of allowing the plaintiffs in review to make the surrender, and ordered judgment to be entered for the defendant in review.”
The plaintiffs in review then tendered a bill of exceptions reciting and excepting to the rulings and refusals of Bo clew ell, J., at October term 1873, (as stated in the bill of exceptions then allowed, and above set forth,) and also those of Bacon, J., at April term 1874, and this bill of exceptions was allowed and signed by both judges.
Gray, C. J. A review, under our statutes, is equivalent to a new trial after judgment. Everything is open upon the review which might have been suggested in the original action. Good v. Lehan, 8 Cush. 299. Anderson v. Brown, 10 Gray, 92. The original judgment is not indeed set aside, but stands until the
After the return and entry of the writ of review, this case should have been treated by the court as if the scire facias were still pending ; and the bail had the same right to surrender their principal that they would have had, under the Gen. Sts. c. 125, § 12, before judgment in the scire facias, and were not obliged, for the purpose of making such surrender, to wait until after judgment upon the review. Indeed, after that judgment had been entered, the case would be finally disposed of, and it would be too late for a surrender of the principal.
In Swett v. Sullivan, 7 Mass. 342, 348, Chief Justice Parsons said that after the entry of final judgment in the original action, “ and until the return and entry of the writ of review, no suit would be pending so that the bail could surrender their principal ” — clearly implying that after the entry of the writ of review such surrender could be made.
In Thayer v. Goddard, 19 Pick. 60, 64, Chief Justice Shaw said that in Jones v. Howland, decided in 1830, and not reported, “the court reversed a judgment rendered on scire facias against bail, and accepted the surrender of the principal in discharge of bail, in the same manner as if no judgment against the bail had been rendered.”
The inference sought to be drawn by the learned counsel for the defendant in review, from this statement of the case of Jones v. Howland — that the original judgment must be first reversed before the bail could surrender their principal — is hardly justified by the words of the chief justice, and is clearly excluded by referring to the papers on file, which show the proceedings to have been as follows: Jones and Lincoln, the bail, having been defaulted upon the scire facias, and judgment rendered against them for debt and costs, sued out a writ of review “ for reversing the said judgment and recovering back ” the amount thereof from the original plaintiffs. At March term 1830 of this court, the bail, having paid the costs of the" scire facias and of the review,
Nor can any rule as to the order of proceeding be derived from the statement, in the opinion in Thayer v. Goddard, 19 Pick. 60, 65, that “ on a reversal of the judgment the bail may surrender their principal.” The only question before the court in that case was whether á writ of review should be granted. And in contemplation of law, the surrender of the principal into court and the judgment discharging the bail are contemporaneous.
The right of the bail to surrender their principal into court at any time before final judgment and be discharged, upon payment sf costs, is given by statute, and does not depend upon the dis*
Both orders passed by the Superior Court upon the writ of review were therefore erroneous. The first order being based upon the ruling that the principal could not be surrendered and the bail discharged until after the original judgment had been reversed or annulled, exceptions seasonably taken to it might, after the final judgment for the defendant in review, be entered and heard in this court. The second order, although it shows, by the words “pro forma,” that the presiding judge did not consider any question of law, equally shows, by the words “as matter of law,” that his judgment was not based on any matter of fact or discretion; and its necessary effect being to deprive the bail of a legal right, it is open to revision on exceptions.
The two orders having been passed by different judges, it was irregular to embrace the exceptions to both orders in one bill. The regular course of practice would have been to enter anew in this court the exceptions to the first order, which were duly allowed by the presiding judge at the term at which they were taken, and were dismissed a year ago by this court because no final judgment had then been rendered in the court below; and to confine the second bill of exceptions to the second order. But with the consent of counsel, signified to us at the argument, the bill of exceptions, jointly allowed by the two judges, has been treated by the court, reddendo singula singulis, as if it had been separated into tw), each signed by the judge whose ruling was stated therein. JExoeptions sustained.
A similar decision was made in Suffolk, March 4, 1875, in the case of
National Bank ok Clinton vs. Edward Taylor & others.
Contract upon a promissory note made by the first named defendant, and indorsed by the payees to the plaintiff. Under an order of the Superior Court, the docket of the January entries, of 1874, was called on June 15, 1874, for the purpose of disposing of cases in which there was no valid defence. When this case was called, a question arising whether there was a valid defence, the court ordered it to be put on the short list for trial on June 22. On June 18.
G. W. Morse, for the plaintiff.
P. A. Collins §• G. A. Griffin, for the defendants, were not called upon.
Bv the Court. lío final judgment having been rendered in the court below, these exceptions have been prematurely entered in this court, and must be Dismissed.