Winch v. Hosmer , 122 Mass. 438 ( 1877 )

Gray, C. J.

A writ of review, like a writ of error, must be In the name of a party to the original judgment, or of those who have by law succeeded to his rights upon his death or bankruptcy. Gen. Sts. c. 146, §§ 30-38. Johnson v. Thaxter, 7 Gray, 242. As Dupee, the alleged owner of the goods replevied, was not a party of record to the original action, his assignees in bankruptcy could not maintain a petition for a review in his or in their own name.

But Dupee, or his assignees representing him, may have been under obligation to protect the warehouseman, against whom the original action was brought, and might, with his assent, have assumed in his name the defence of that action. White v. Dolliver, 113 Mass. 400. The real party in interest may, upon indemnifying the formal party of record against costs, be allowed to sue out a writ of review in his name. Fuller v. Storer, 111 Mass. 281.

The statutes authorize the courts, in their discretion, to allow amendments in any civil suit or proceeding, by change of parties or of form of action, or in any other matter, either of form or substance, which may enable the plaintiff to maintain the suit for the cause for which it was intended to be brought, however the same may be misdescribed. Gen. Sts. c. 129, §§ 41, 82. These statutes permit the substitution of a new plaintiff, and are applicable to petitions for review. Crafts v. Sikes, 4 Gray, 194. Emery v. Osgood, 1 Allen, 244. Davenport v. Holland, 2 Cush. 1.

It was therefore within the discretion of the Superior Court to allow this petition for a review to be amended by substituting the name of the original defendant as the formal petitioner, and the petition, so amended, to be prosecuted for the benefit of the real parties in interest. No question of the form of the petition, or of the sufficiency of the evidence, appears to have been made Hi the hearing, or is open upon these exceptions.

Exceptions overruled.