159 Mass. 210 | Mass. | 1893
The plaintiff in this suit duly filed his exceptions. The presiding justice appointed “ June 18,1892, 8 o’clock A. M., at the Court House, East Cambridge,” as the time and place for hearing the parties concerning the allowance of the exceptions, and an indorsement on the exceptions states that, “ said Thompson not appearing to prosecute and settle said exceptions, and the defendants did appear, the said exceptions are disallowed.” The commissioner to whom the plaintiff’s petition to prove his exceptions was referred has found that the presiding justice “ did not pass upon the truth of said exceptions, or any of them,” and that he erred “ in disallowing the exceptions solely on the ground of the non-appearance of the petitioner,” etc. A party may undoubtedly abandon his exceptions after he has filed them, but such abandonment ought not to be inferred merely from his failure to appear at only one hearing appointed for settling them. The procedure is regulated by Pub. Sts. c. 153, § 8. The statute provides that the adverse party “ shall have an opportunity to be heard concerning the allowance of such exceptions,” but there is no similar provision concerning the party who excepts. In practice, both parties usually attend, that each may be heard upon any amendment or modification of the exceptions that may be suggested by the other or by the court. But the excepting party has a right to stand upon his exceptions as he has framed them. It then becomes the duty of the presiding justice to examine them, and, if they are “ found conformable to the truth,” to allow them, whether the excepting party appears or not. The commissioner has found that the “ exceptions tendered did conform to the truth, unless some one or more of the thirty-one omissions specified above were material, and should
The first exception is to the exclusion of evidence that, before the action of Beals v. Thompson, 149 Mass. 405, was brought, the financial standing and reputation of the plaintiff in the present suit were good, and that after judgment was rendered in that action his financial standing and reputation were impaired. This exception plainly relates to damages, and it becomes immaterial if the plaintiff -failed to prove a cause of action. The plaintiff’s remaining contentions are, first, that the action of Beals v. Thompson was an action for libel, and that the cause of action was within Pub. Sts. c. 197, § 3, and that, if this statute of limitations had been pleaded, it would have been a defence, and that the present defendants, as his attorneys in that action, were negligent in not pleading this statute, or in asking leave of the court to plead it; and secondly, that the defendants wrongfully withdrew their appearances, and refused to continue to act as his attorneys in that action. It was admitted that since the judgment in the action of Beals v. Thompson the plaintiff in the present action has been adjudged an insolvent debtor, and that assignees of his estate have been duly chosen, and that he has not obtained leave of his assignees to prosecute this action, nor have the assignees intervened in it. On these admitted facts, the defendants contended that the plaintiff had no right to bring and prosecute this action, and the plaintiff contended that the cause of action did not pass to the assignees, and that this defence was not open to the defendants under their answers. The presiding justice ruled that under the order of the court made in the suit of Beals v. Thompson, taking off the default, the defendant therein was limited iu his defences to those stated in the order; “ and that said order by its terms excluded the right of the defendant to plead the statute of limitations; and that the plaintiff had shown no negligence on the part of the defendants in connection with said case of Beals v. Thompson; and that, as matter of law, upon the undisputed evidence in this case, the plaintiff had not made out his case, and was not entitled to go to the jury.” Of
The exceptions recite that the plaintiff “ offered in evidence a duly authenticated copy of the record in the case of Mira Beals against him.” This record shows that in October, 1888, Mr. Richardson, and on October 9, 1888, Mr. Dickinson and Mr. Bailey, withdrew their appearances as attorneys for the defendant. The plaintiff also introduced in evidence the answers of these defendants to the interrogatories filed by him. Mr. Richardson answered: “I notified Thompson about October 1, 1888, that I could not act further in his case, and could not try it; and subsequently withdrew my appearance about October 9. I did not act after October 1. Said Thompson assented to my withdrawal. I obtained no leave from the court.” Mr. Dickinson and Mr. Bailey answered that they withdrew from the case on October 9,1888; that they notified Mr. Thompson that they had withdrawn; and that they understood him to consent to their withdrawal. In Powers v. Manning, 154 Mass. 370, it was held that an attorney at law, for reasonable cause, and upon reasonable notice, may withdraw from a suit. So far as appears, the only evidence which the plaintiff offered that these defendants wrongfully withdrew from the defence of the suit was that they did in fact withdraw after notice to him, and that he consented to it, or that they understood that he consented to it. The plaintiff did not testify in the case, and there was no contradiction to the evidence of the defendants put in by the plaintiff, that the plaintiff consented to their withdrawal, or that they understood that he consented. This evidence is not sufficient to sustain the burden, which is on the plaintiff, of proving that they withdrew wrongfully or without justification. The withdrawal was no wrong to him if he consented to it.
Whether the defendants should have pleaded or attempted to plead the special statute of limitations relates to all the defendants. The writ in Beals v. Thompson was dated December 29, 1887, and was returnable on the first Monday of February, 1888, and was duly entered on the return day, and the defendant was defaulted for want of an appearance on February 17,1888. The defendant Hunt appeared for the defendant in Beals v. Thomp
It is unnecessary to consider the further contention of the defendants, that the suit of Beals v. Thompson was not an action of tort in the nature of an action for a libel, but was an action of tort in the nature of an action per quad consortium, amisit, which could be brought at any time within six years after the cause of action had accrued. If the defendant in Beals v. Thompson had been permitted to file and argue a demurrer, perhaps this court at some time would have been called upon to pass upon the form of the action. This question was not directly involved in the exceptions taken in that case and argued in this court, although it was assumed that it was an action of libel, with an allegation of the loss of the society of the husband as special damages. Beals v. Thompson, 149 Mass. 405. If the defendants had considered the nature of the action, they might well have been in some doubt whether it was within Pub. Sts. c. 197, § 3, but at the time when they entered on the defence we think that this contention was not open to them.
We have not considered whether the plaintiff could prosecute the action without the assent of his assignees in insolvency, or whether the defendants could be sued jointly.
Exceptions overruled.