Graef v. Bernard , 162 Mass. 300 ( 1894 )

Morton, J.

The rights of parties are generally determined as of the time when the action is begun. And it is necessary that it should be so. That the rule is not an invariable one, however, is shown by the numerous instances in which, by the plea of puis darrein continuance, facts occurring after the commencement of the action are set up and allowed to operate in bar of it. And it is expressly provided by Pub. Sts. c. 167, § 26, that “ an answer or replication may allege facts which have occurred since the institution of the suit.” If a declaration, answer, or replication has been filed, a supplemental one may be made by leave of court, alleging material facts that have occurred since the former declaration, answer, or replication. The statute is wider in its scope than the plea of puis darrein continuance. Strictly speaking, that can only be availed of in regard to matters occurring since the last continuance. The statute is not so limited. The suit in New York, on the judgment in which the defendant relies, was begun on the same day as this action, viz. June 27,1893. Judgment in the New York action was entered in the plaintiff’s favor on July 17, 1893. There can be no doubt that the defendant had the right to set up the judgment so obtained in bar of the plaintiff’s right to recover in this action. It is equally clear, we think, that it was competent for the court, upon the plaintiff’s application, to reopen this case after the hearing and before the finding, and allow him to file a replication setting up that the judgment had been vacated and was no longer in force, and to introduce evidence of that fact, and to find, if the evidence warranted it, that the judgment in that case had been vacated, and that the plaintiff was entitled to judgment in this action.

Exceptions overruled-