Green v. French , 83 Mass. 265 ( 1861 )

Bigelow, C. J.

We think it very clear that there has been no breach of the bond declared on. The petition for a review, and the review itself, if granted, are two separate and independent proceedings. In the former, the only judgment that can be given is, that a review shall or shall not be granted; and such judgment is final in that proceeding. If a writ of review is granted, it is a new process, to be sued out, served and returned like original writs, and in which the parties are again impleaded and a new judgment is rendered. Davenport v. Holland, 2 Cush. 1, 11. In the present case the condition of the bond is not to pay whatever should be due on the original judgment or any part of it, when final judgment on the petition for review should be rendered, but to pay that sum after the final judgment in review. This clearly contemplates the contingency of a writ of review being granted on the petition and a final judgment on that process, but makes no provision for the event which actually happened, a final judgment on the petition for a review by its dismissal. This latter order or decree can in no sense be regarded as a final judgment in review.

The condition of the bond is inartificially drawn, and does not conform to the terms prescribed by Rev. Sts. c. 99, § 22. It should have provided for the payment of whatever should appear to be due to the obligee after the final judgment in the review, instead of stipulating for the payment of whatever should be due upon the original judgment. But this would not vitiate the bond if the plaintiff could show that the contingency of a final judgment in review had ever happened. This he fails to do, because no writ of review was ever sued out. It is quite possible that the plaintiff supposed that the condition also embraced the contingency of a failure to prosecute the petition for review with effect, as it might well have done if the court had so ordered it, under Rev. Sts. c. 99, § 22. But it does not, and sureties have a right to insist on the strict construction of their written contract. We can look only at the language in which it is expressed, and give to it a just interpretation. When that is done, the meaning of the written words must be deemed the conclusive evidence of the real intent of the parties.

Exceptions sustained.