Practice, Civil, Writ of error, Appeal, Scire facias for new execution after invalid levy. Police, District and Municipal Courts. Supreme Judicial Court. Scire Facias. Execution.
It is the settled practice of this Commonwealth that, when a writ of error is used to review a final judgment, allegations as to errors of fact may be joined with allegations as to errors of law in the assignment of errors.
Statement by BRALEY, J., as to pleadings and practice in proceedings upon writs of error.
Where, in proceedings upon a writ of error to reverse a judgment of a municipal court, the assignment of errors contains allegations as to errors of fact as well as errors of law, and the defendant demurs specifically to the several assignments as not disclosing any invalidity in the judgment sought to be reversed, all matters of fact well pleaded are admitted by the demurrer and issues of law alone are raised, which, under R.L.c. 156, § 6, can be determined only by the full court, where they are immediately pending, and which therefore it is not within the authority of a single justice of this court either to decide, or even to report or to reserve.
Statement by BRALEY, J., as to the pleadings and practice in scire facias proceedings under R.L.c. 178, § 51, for a new execution after an invalid levy upon land under a former execution.
Scire facias proceedings in a police, district or municipal court under R.L.c. 178, § 51, for a new execution to be issued upon a civil judgment after an invalid levy upon land under a former execution which was issued upon the same judgment, although issued upon an existing record, constitute an action at law in the nature of an original action, and an appeal lies to the Superior Court from a judgment entered therein.
A writ of error to revise a judgment of a police, district or municipal court which was entered in scire facias proceedings for a new execution under R.L.c. 178, § 51, ought not to be entertained where the plaintiff in error did not prosecute an appeal from the judgment to the Superior Court.
BRALEY, J.
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. Clark, 7 Pick. 145. Raymond v. Butterworth, 139 Mass. 471. Eliot v. McCormick, 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. Goodridge v. Ross, 6 Met. 487. Riley v. Waugh, 8 Cush. 220, 222. Bodurtha v. Goodrich, 3 Gray, 508, 512. Conto v. Silvia, 170 Mass. 152, 154.
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. Kendrick v. Wentworth, 14 Mass. 57. Wilson v. Green, 19 Pick. 433. Sigourney v. Stockwell, 4 Met. 518, 521. The necessary recitals and allegations which constitute the declaration are not filled in by the clerk, but by counsel, who, if he indorses the writ, may be held liable for costs where the plaintiff is a nonresident. Morrill v. Lamson, 138 Mass. 115. R.L.c. 173, § 39. It is made returnable at a regular return day and, after service by copy, is entered upon the docket as an independent suit. The plaintiff must show that the former levy is either partially or wholly invalid, while the defendant in his answer among other defenses may plead in bar a subsequent judgment or a release of the judgment. R.L.c. 178, § 51. Adams v. Savage, 3 Salk. 321; Musgrave v. Wharton, Yelverton, 218. If the defendant "does not show sufficient cause to the contrary, the levy of the former execution may be set aside and another execution issued for the amount then due on the original judgment and not included in a subsequent judgment, but without interest or further costs." R.L.c. 178, § 51. The pleadings necessarily refer to the former judgment, but the action is instituted for the enforcement of a right wholly distinct from the issues in the original suit. Haskell v. Littlefield, 155 Mass. 320. Dickson v. Wilkinson, 3 How. 56, 59. Treviban v. Lawrence, 2 Ld. Raym. 1036; S.C. 1048. Obrian v. Ram, 3 Mod. 186, 189. 8 Bac. Abr. 598, 624. In the former action the litigation has been finally closed, and upon the defendant's default or a decision against him on the merits, the court renders judgment awarding another execution. Haskell v. Littlefield, 155 Mass. 320.
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. Farrell v. Gleeson, 11 Cl. F. 702. Co. Litt. 290, b. 8 Bac. Abr. 598, 624. Tidd's Pr. (4th Am. ed.) 1046. 2 Sellon's Pr. (1st Am. ed.) 188. Nor is the decision in Gray v. Thrasher, 104 Mass. 373, on which the plaintiffs place much reliance, in conflict with this view. It was there held under St. 1862, c. 217, § 4, authorizing the removal before judgment in the police court of Boston of any civil action wherein the debt or damages demanded exceeded a certain amount to the Superior Court, that scire facias to charge a trustee could not be removed. The statute, which was repealed by Pub. Sts. c. 224, evidently referred as the opinion indicates only to actions of contract, tort or replevin enumerated in Gen. Sts. c. 120, §§ 1 and 2, in which the appellate court could enter judgment and issue execution upon the record before it. Gen. Sts. c. 116, § 41. St. 1866, c. 279, § 9. Cooper v. Skinner, 124 Mass. 183. Dion v. Powers, 128 Mass. 192, 193.
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, 164, 169. Pratt v. Cunliff, 9 Allen, 90. Thompson v. King, 173 Mass. 439. Our construction of the statute as intended to permit an appeal, even if the record upon which the proceeding is based, not having been put in issue, cannot be transmitted, is in accordance with the cases of Yetten v. Conroy, 165 Mass. 238, and Clarke v. Bacall, 171 Mass. 292, where it was determined, that the denial of a petition to vacate judgment could be reviewed on appeal.
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.