Opinion

Hayes v. Collins

  • 114 Mass. 54
Court
Massachusetts Supreme Judicial Court
Filed
Nov 15, 1873
Status
Published
Author
Gray
On the bench
Gray
Cited by
11 cases
Authority
More cited than 95.2%

The opinion

Gray, C. J.

A petition for a review is addressed to the discretion of the judge to whom it is presented, and his decision *56 thereon can be revised upon exceptions or report only for erroneous rulings in matter of law. Gen. Sts. c. 115, § 7; c. 146, §§ 21, 24. Converse v. Carter, 8 Allen, 568 . Richardson v. Lloyd, 99 Mass. 475 . Weeks v. Adamson, 106 Mass. 514 . The only question raised by the exceptions in the case at bar is whether the judgment for the respondent upon a similar petition previously presented to the Superior Court is a bar to the present petition. If the judgment upon the former petition had passed upon the merits, it might well be held to be a conclusive adjudication that the petitioner was not entitled to have the original judgment reviewed, just as the affirmance of a judgment upon a writ of error is held to be a bar to a second writ of error for any cause which existed at the time of that judgment. Booth v. Commonwealth, 7 Met. 285. Bodurtha v. Goodrich, 3 Gray, 508 . But the judgment upon the' first petition for a review in this case does not appear to have been a judgment of dismissal upon the merits, but a mere judgment for the respondent for his costs, in the nature of a judgment upon a nonsuit or discontinuance, such as is rendered for the defendant in an ordinary action at law, which the plaintiff neglects to enter, or to file a declaraition in. Gen. Sts. c. 120, § 12; c. 129, § 9; c. 156, § 12. Gilbreth v. Brown, 15 Mass. 178 . Coburn v. Whitely, 8 Met. 272 . Such a judgment is no bar to a new suit or petition. Burrell v. Burrell, 10 Mass. 221 . Wade v. Howard, 8 Pick. 353 . Ensign v. Bartholomew, 1 Met. 274 . Homer v. Brown, 16 How. 354, 365 .

Exceptions overruled.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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