Smith v. Franklin

1 Mass. 480

Opinion

The error assigned was that the said Lemuel Franklin, in his own right, and the said Jabez Barney, as administrator, as aforesaid joined in bringing the suit aforesaid, and that the judgment thereon, rendered was in favor of the said Lemuel Franklin, in his own right, and the said Jabez Barney, in his said capacity of administrator as aforesaid, which by law could not be done.

The defendants in error were called, but did not appear; and the Court reversed the judgment, but directed the clerk to tax no costs, the reversal being for error in law.

Bridge, for the plaintiff in error.

After the order to reverse had been pronounced, it occurred to the Court, that the judgment complained of was rendered in the county of Bristol, upon which a doubt arose, whether the Court sitting in this county (Kennebeck) had jurisdiction ; that is, whether the writ of error ought not to have been made returnable in the county in which the original judgment had been rendered,

(a) The Court took time to consider; and on the next day. they said they were of opinion, that they had jurisdiction, and that the order to reverse must stand.

Judgment reversed, (b)

(Sedgwick, Sewall and Thacker, justices, present.)

The writ of error was granted, on motion, at June term, 1804, in the county oí Lincoln ; and the minute on the record is, “ Ordered that a writ of error and set. fa. to hear errors issue immediately.” Nothing was minuted, as to the place where the writ should be returnable. The practice is, to grant the writ in any county, and to return it to the Supreme Court holden for the county where judgment was rendered.

It ought not, perhaps, to be concluded, because the Court decided in this case that the writ of error was returnable in this county, that therefore a writ ot error may, at all times, and under all circumstances, be returned into any county other than that in which the original judgment was rendered; for it ought to be noticed, that in the prseent case, the plaintiff in error resided in the county where the writ was returned. And possibly the decision of the Court was grounded on the analogy between this case and that of bringing an action in the county in which one of the parties lives. Vide the act of Oct. 30, 1784, sect. 13. (stat. 1784, c. 28.)