Hayes v. Collins

114 Mass. 54

Opinion

Gray, C. J.

A petition for a review is addressed to the discretion of the judge to whom it is presented, and his decision thereon can be revised upon exceptions or report only for erroneous rulings in matter of law. Gen. Sts. c. 115, § 7; c. 146, §§ 21, 24. Converse v. Carter, 8 Allen, 568. Richardson v. Lloyd, 99 Mass. 475. Weeks v. Adamson, 106 Mass. 514. The only question raised by the exceptions in the case at bar is whether the judgment for the respondent upon a similar petition previously presented to the Superior Court is a bar to the present petition. If the judgment upon the former petition had passed upon the merits, it might well be held to be a conclusive adjudication that the petitioner was not entitled to have the original judgment reviewed, just as the affirmance of a judgment upon a writ of error is held to be a bar to a second writ of error for any cause which existed at the time of that judgment. Booth v. Commonwealth, 7 Met. 285. Bodurtha v. Goodrich, 3 Gray, 508. But the judgment upon the' first petition for a review in this case does not appear to have been a judgment of dismissal upon the merits, but a mere judgment for the respondent for his costs, in the nature of a judgment upon a nonsuit or discontinuance, such as is rendered for the defendant in an ordinary action at law, which the plaintiff neglects to enter, or to file a declaraition in. Gen. Sts. c. 120, § 12; c. 129, § 9; c. 156, § 12. Gilbreth v. Brown, 15 Mass. 178. Coburn v. Whitely, 8 Met. 272. Such a judgment is no bar to a new suit or petition. Burrell v. Burrell, 10 Mass. 221. Wade v. Howard, 8 Pick. 353. Ensign v. Bartholomew, 1 Met. 274. Homer v. Brown, 16 How. 354, 365.

Exceptions overruled.