McCormick v. Fiske

138 Mass. 379, 1885 Mass. LEXIS 201

• Court: Massachusetts Supreme Judicial Court
• Decided: January 7, 1885
• Status: Published

Opinion

C. Allen, J.

Under the Pub. Sts. c. 187, § 4, reenacting the Gen. Sts. c. 146, §§ 5, 6, a writ of error to reverse a judgment may be sued out within six years after the entering of the judgment; or, if an action of contract or writ of scire facias is brought on a judgment, a writ of error may be sued out at any time within six years after the bringing of such action or writ. A want of jurisdiction in the court rendering the judgment is peculiarly a proper matter to be assigned for error. Pub. Sts. c. 187, § 3.

Upon a writ of error, the actual facts upon which the jurisdiction depended inight be shown; and if, upon those facts, the court had no jurisdiction, the defendant in the original action would be entitled to a reversal of the judgment. Tilden v. Johnson, 6 Cush. 354, 359. If the facts would warrant it, a writ of error might have been brought in the present case, and an application made for a stay of proceedings in the action upon the judgment, until it could be determined whether or not the judgment should be reversed for error. Since the remedy by writ of error was thus open to the defendant, the defence here set up cannot avail to defeat a domestic judgment. Cook v. Darling, 18 Pick. 393. Finneran v. Leonard, 7 Allen, 54. Hendrick v. Whittemore, 105 Mass. 23.

Exceptions overruled.