Osgood v. City of Lynn

130 Mass. 335, 1881 Mass. LEXIS 90

Opinion

Soule, J.

It is unnecessary to decide the question whether an action brought under the St. of 1877, c. 234,

* is a local action or not, because we are of opinion that, even if the language of the statute makes the action a local one, the exceptions cannot be sustained.

It is provided by the Gen. Sts. e. 129, § 70, that, “ when it appears on a trial that a local action has been brought in an erroneous venue, the court may of its own motion order a non-suit to be entered, unless good cause shall be shown why the trial should be allowed to proceed.” It is also provided by the Gen. Sts. c. 133, § 14, that “ when judgment is rendered in a local action brought in an erroneous venue, the court shall cause its writ of possession or other needful writ of execution to be directed to the sheriff of the proper county, so that the judgment may be duly executed.”

It has been held that the language of these two sections leaves it entirely to the discretion of the court whether a local action brought in another county than that designated by law shall be dismissed, or shall proceed to trial; and the granting of a motion to dismiss such an action brought in an erroneous venue, not as a matter of discretion but a matter of right, was error; and the court added, that, “ upon such a motion, it is manifest that the effect of the long delay, and the question of waiver, would be matters eminently proper to be considered.” Putnam v. Bond, 102 Mass. 370. That case governs the case at bar. The history of the change in the law which the two sections of the statute referred to have wrought, and the reasons which led to the enactment of them in the year 1851, are fully stated in the opinion of the court by Mr. Justice Ames.

The result is, that, as the defendant appeared and- answered, without pleading to the jurisdiction, and the cause was twice tried before the plea under consideration was filed, it was within the discretion of the court to dismiss the action, or retain it and let it proceed to final judgment, even if the action was brought in an erroneous venue. This being so, no exception lies to the decision of the Superior Court by which the defendant’s plea was overruled.

Exceptions overruled.

Section 5 of this act provides, with certain exceptions not material to this case, that an action against a town or place for an injury caused by a defect in a highway “shall be brought in the county wherein the said town or place is situated.”