Ryan v. Annelin , 228 Mass. 591 ( 1917 )

Rugg, C. J.

This is a suit in equity whereby the plaintiff seeks to restrain the defendant from collecting an execution against her. The case proceeded to trial without objection. That was a waiver of any right to set up want of equity. Bauer v. International Waste Co. 201 Mass. 197.

The pertinent facts are that the defendant at different times brought two several actions, one against the plaintiff and the other against one Canavan, both for the same cause of action, and recovered general verdicts in each action for the same amount. Judgment was entered in favor of the present defendant in the action against Canavan for $355.62, debt and damages, and for $75.70 costs. Although the evidence was conflicting, it might have been found, as seemingly it was found by the judge of the Superior Court, that this judgment had been paid in full. There is no reason for disturbing that finding. The credibility of witnesses was wholly for the trial judge. The present plaintiff filed exceptions and a motion fora new trial in the action by the present defendant against her, upon which proceedings were had resulting in a remission of $38, the dismissal of the exceptions and the entry of judgment in favor of the present defendant for $323.92, debt and damages, and for $92.03, costs. It is to restrain the collection of an execution issued on this judgment that the present suit is brought.

The present defendant as plaintiff in the original actions had a right to prosecute both to judgment, but to collect only one satisfaction of the debt or damage. Corey v. Havener, 182 Mass. 250. Cote v. New England Navigation Co. 213 Mass. 177, 180. But she had a right to collect costs in both actions after having recovered judgments in both. It was said by Chief Justice Gray in Savage v. Stevens, 128 Mass. 254, at page 255, “It is clear . . . that if the plaintiff prosecutes several actions to judgment before receiving any satisfaction, he may recover judgment in each action for damages and costs, and may levy execution in any one of the actions for the damages, and in each action for the costs adjudged to be due him.” Other decisions to the same point are Cook v. Hinsdale, 4 Cush. 134, 138, and Whipple v. Newton, 17 Pick. 168. ■

In the case at bar it was recited in the order for a final decree that the judgment in the action of the present defendant against the present plaintiff was “satisfied in full except for the sum of thirty-four and 11/100 dollars costs.” The judge filed no finding of facts and hence the basis for this conclusion is not stated and that arithmetical result is not easily manifest from the report. There was no evidence that the present defendant was paid anything more than the amount of the judgment for debt and costs in the action against Canavan. The ninety-three cents which was collected in excess of the face of that judgment presumably was interest for thirteen days. There was no evidence that anything had been paid directly on the judgment against the present plaintiff. Although the debt in the judgment against Canavan was larger than in that against the present plaintiff, she is not entitled to the "benefit of that circumstance in this proceeding. The judgment against Canavan was established by the record of the court. Therefore it imported incontrovertible verity and could not be contradicted. In receiving payment of that judgment in full the defendant received no more than was due her. The only benefit which the present plaintiff gained by the payment of that judgment was the satisfaction of the portion of the judgment against her for debt or damages, but not for costs. The judgment against her for costs remained outstanding and unsatisfied in whole or in part.

Although the court before entering judgments in the original actions might have reduced the witness fees and other costs so that no more than one full set of costs might have been recovered under R. L. c. 203, § 9, (since perhaps it may be inferred that the cases were tried together,) provided that appeared to be just, it is not possible to make such a readjustment after judgment.

The record states that the court entered a “Final Decree” in substance that, if the plaintiff paid the defendant $34.11, perpetual injunction should issue, otherwise the defendant might proceed to the collection of that amount only, and that the defendant appealed, and that then the court reported the case in these terms: “If, in any aspect of the pleadings and evidence, the decree was right, the appeal is to be dismissed; otherwise such a decree is to be entered as the merits of the case require.” This was irregular. If the decree was in truth final, as this was according to its terms and effect, then after its actual entry the judge could not report the case further than to perfect the record so that all questions presented might be considered on the appeal. Worcester v. Lakeside Manuf. Co. 174 Mass. 299, 300. If the case were an appeal from a final decree and there was no error, the correct disposition of the case would not be to dismiss the appeal but to affirm the decree. However, we treat the record as presenting an order for a decree and not the entry of a final decree. Bartlett v. Slater, 211 Mass. 334, 352.

On the record as it now stands the plaintiff owes to the defendant the entire amount of costs adjudged to be due in the action of the defendant against the plaintiff. The order for final decree is to be modified by the insertion of that sum with interest to the date of the entry of the decree in place of the sum of “thirty-four and 11/100 dollars” in the two places where those words and figures occur, and as thus modified is to be entered as the final decree.

So ordered.