Day v. Berkshire Woollen Co.

67 Mass. 420

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1854
• Status: Published

Opinion

Thomas, J.

Two -causes of error are assigned. 1st. That the judgment rendered exceeded the ad damnum of the unit. 2d. That the taxation of costs was erroneous.

1. The execution which was issued conformed to the judgment. The error therefore, if any, was not in the process, but in the judgment. Upon what was this judgment rendered? The defendants in error brought their suit, setting forth their cause of action, to wit, damages for the obstruction of the waterwheels of their mill, by means of backwater caused by the dam of the plaintiff in error, from a given date (July 5th 1850) to the date of the writ (October 1st 1850) with an ad damnum sufficient to cover such damages. After the entry of the action, the parties agreed to refer the action, that is, the claim for damages from July 5th to October 1st 1850, and with it three similar previous actions between the same parties, and the claim for damages for a period prior to the first action, and also for the period subsequent to the date of the writ. This is an agreement, in terms, that if the plaintiff recover at all, he shall recover upon other and larger claims than that set forth' in the writ. It is an agreement to such change or enlargement of the process as is necessary to accomplish this result. It would be absurd to say, we will include with this suit all the damages, if any, for two years, and yet retain the ad damnum which will only cover a period of six months.

The general principle is conceded, that the agreement to refer is a waiver of defects in the declaration and pleadings. If it is a waiver of any thing, it must be of that defect, without the correction of which the agreement of the parties cannot be carried into effect; and that agreement cannot be carried into effect without enlargement of the ad damnum. The argument for the plaintiff in error seemed to proceed on the ground that the judgment is entered upon the writ, and that there is therefore a manifest variance. But the judgment is the result or legal conclusion of the entire record, and is in conformity with it. It is a judgment upon proceedings modified and fashioned by the written agreement of the parties, which is part of the record.

The effect upon third persons is not open to us, nor does the illustration furnish any aid in reaching a correct conclusion upon this, for the agreement of parties may well conclude them, though it cannot affect the rights of third persons, as bail oz subsequent attaching creditors.

2. The second error assigned has reference to the taxation of costs. The suits were not for the same cause of action, though they were for like causes of action. They were for damages done to the plaintiff for different periods of time. The decision of one would not determine the others, though it might indicate the principles upon which they were to be determined. If the witnesses were summoned, and attended and were paid in the different cases, their travel and attendance might be taxed in each. Whether they so attended, was a question to be determined by the clerk in the first instance, and upon appeal by the court. If the plaintiff in error failed to take such appeal, or if, taking, he failed to prosecute it, he cannot reverse this judgment because such taxation was erroneous. This point was settled in Jacobs v. Potter, 8 Cush. 236. Judgment affirmed.

[Merrick, J. having been one of the referees, did not sit in this case.]