Knight v. Hurley

29 N.E. 1149, 155 Mass. 486, 1892 Mass. LEXIS 355

• Court: Massachusetts Supreme Judicial Court
• Decided: February 23, 1892
• Status: Published

Opinion

Lathrop, J.

The declaration in this case alleges that on June 8,1882, the defendant obtained leave of court to file answers and demurrers in four actions at law pending against him in the Superior Court, “on condition reserved as to terms”; and that on June 15, 1882, the court imposed as terms for filing said answers and demurrers double term fees in each case. The declaration further alleges a demand on the defendant, and a refusal to pay, and that the defendant owes the' plaintiff the sum of forty dollars, with interest thereon. It is clear that the action cannot be maintained. The order in each case was an interlocutory order, which the court could enforce by proper proceedings in that case. Pub. Sts. e. 153, § 3. It cannot be enforced by an independent action. Emerson v. Lashley, 2 H. Bl. 248. Fry v. Malcolm, 4 Taunt. 705. Carpenter v. Thornton, 3 B. & Ald. 52, 56. Patrick v. Shedden, 2 El. & Bl. 14. Hutchinson v. Gillespie, 11 Exch. 798. Sheehy v. Professional Life Assurance Co. 2 C. B. (N. S.) 211, 256. See also Howe v. Salisbury, 145 Mass. 279.

The Superior Court therefore rightly sustained the demurrer, and gave judgment for the defendant. Judgment affirmed.