Smith v. O'Brien , 146 Mass. 294 ( 1888 )

Knowlton, J.

Assuming that the petitioner could have maintained a petition for a writ of review when he entered the office of the respondent’s attorney on May 25, 1887, he there made an agreement for a valuable consideration, which was inconsistent with the continuance of his right to have a supersedeas and set aside the judgment upon a review. As soon as he informed the attorney that he intended to obtain a supersedeas and a review, he was told that the execution would be immediately enforced by a levy upon his property, and upon the officer’s coming to get it for service, he gave the attorney twenty-five dollars in part payment of the judgment, paid the officer one dollar for his trouble, and made an oral contract with the attorney to pay the balance of the execution the following Tuesday, upon the attorney’s agreeing to refrain from enforcing it until that time. By this arrangement the respondent’s right to secure his execution by an immediate levy upon property was released, and the petitioner’s right to treat the judgment as voidable was waived and given up.

The respondent’s first prayer for a ruling must be considered in connection with the fact that his attorney, as a part of the transaction referred to in the prayer, agreed with the petitioner to refrain from enforcing the execution until the following Tuesday, and the court should have ruled as therein requested.

Exceptions sustained.