Gray v. Thrasher , 104 Mass. 373 ( 1870 )

Colt, J.

The defendant’s plea to the jurisdiction of this "court in this.writ of error is founded upon the Gen. Sts. c. 129, § 79, by which it is provided that defects in the writ or other process by which the defendant is brought before the court shall not affect the jurisdiction of the court. But the objection of the plaintiff in error, which was made in the original suit, was not to the process or its service; it was to the jurisdiction of the court over the subject matter of the suit; and this was a defect which could not be waived by appearance and answer. Ashuelot Bank v. Pearson, 14 Gray, 521. The defendant had a right to appear and protect himself against an erroneous judgment. Elder v. Dwight Manufacturing Co. 4 Gray, 201, 205. And besides, the case does not come within the provisions of the section cited, because the judgment was rendered upon a default, and not upon a verdict. Hollis v. Richardson, 13 Gray, 392.

A writ of scire facias is not a civil action, returnable before the municipal court of Boston, wherein the debt or damage demanded exceeds a definite sum, within the meaning of those statutes which authorize the removal of certain cases of that description to the superior court. Sts. 1862, c. 217, § 4; 1866, c. 279, § 9. It is a judicial writ, which can only issue from the court having possession of the record on which it is founded. If issued by any other court, it will be a mere nullity, and an appearance and answer by the defendant will not give jurisdiction. Osgood v. Thurston, 23 Pick. 110. No debt or damage is therein demanded. The plaintiff in such an action therefore has no choice as to the courts in which he will bring his suit. No other court, from the nature of the writ, can have jurisdiction. The provisions of the statutes which give the defendant a right of removal are intended to meet the injustice of only allowing to the plaintiff, when there is more than one court having jurisdiction, the right to elect in which to try his case. The interpretation for which the defendant contends would put the parties upon unequal footing, by giving only to the defendant an opportunity to some extent of choosing his tribunal. It could not have been the intention of the statutes to establish such inequality, and it cannot be inferred from doubtful provisions. Humphrey v. Berkshire Woolen Co. 10 Allen, 420, 423.

It is of no consequence that the alleged error was the result of the act of the plaintiff in error. Nothing that he could do could confer jurisdiction on the court, in the original action, which by law it did not possess.

The original action was improperly removed from the municipal court. The judgment of the superior court must therefore be reversed, and the case dismissed from that court. Gen. Sts. c. 146, § 2. Ordered accordingly.