Martin v. Tapley

119 Mass. 116, 1875 Mass. LEXIS 85

• Court: Massachusetts Supreme Judicial Court
• Decided: November 9, 1875
• Status: Published

Opinion

Gray, C. J.

The authorities cited for the petitioners show that the counsel for a deceased party might be heard as amicus eurice before the full court, if the exceptions sought to be established had been allowed and entered in his client’s lifetime; be- • cause the delay in disposing of them would be deemed the act of the court; Tapley v. Martin, 116 Mass. 275; Bridges v. Smyth, 8 Bing. 29; S. C. 1 Mo. & Sc. 93; Miles v. Williams, 9 Q. B. 47; or if the exceptions had been taken by the party in his lifetime, though not allowed or entered until after his death ; because they would be his own exceptions, seasonably alleged and tendered by himself, and the subsequent allowance and entry of them might be treated as mere forms to put them in order for hearing ; Kelley v. Riley, 106 Mass. 339; or if the ruling below bad been in his favor, and the questions of law reserved on the motion of the other party; Currier v. Lowell, 16 Pick. 170 ; or if the questions of law had been reserved by the judge himself at the trial or hearing, and brought before the full court by his report, or by motion pursuant to leave so reserved. Springfield v. Worcester, 2 Cush. 52, 62. Freeman v. Rosher, 13 Q. B. 780.

But the difficulty in this case lies deeper. None but a party to a suit has a right to allege exceptions, or to file a petition to establish the truth thereof. Gen. Sts. c. 115, §§ 7, 11. At the time when these questions of law were first raised, the defendant was dead, and no executor or administrator had, so far as appears, been appointed or named. The heir of the defendant had no right to appear as a party to a personal action. The sureties upon the bond to dissolve the attachment were not, and could not be made, parties to the action in their own name; and they could not use the name of the defendant, because she was dead, uc$r of her executor or administrator, because it does not appear that there was any. Both the heir and the sureties were allowed to come in and be heard, not as parties to the suit, but, just as any stranger might be, for the information of the judge before whom the motions were pending. The counsel for the deceased defendant had no right to be heard as such, because his authority to act in her behalf had been revoked by her death. Like the heir and the sureties, he could be heard only as amicus curiae. An amicus curiae is heard only by the leave and for the assistance of the court, and upon a case already before it. He has no control over the suit, and no right to institute any proceeding therein, or to bring the case from one court to another, or from a single judge to the full court, by exceptions, appeal or writ of error. 4 H. VI. 16, pl. 16. Isley’s case, 1 Leon. 187. Vin. Ab Amicus Curiae. Knight v. Low, 15 Ind. 374.

None of the petitioners being parties to the suit, the exceptions alleged by them were not legally alleged, and were rightly disallowed by the presiding judge, and the petition to establish the truth of them must be Dismissed.