Wallace v. Boston Elevated Railway Co.

Massachusetts Supreme Judicial Court

Wallace v. Boston Elevated Railway Co.

80 N.E. 461, 194 Mass. 328, 1907 Mass. LEXIS 973

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 28, 1907

StatusPublished

Cited by13 cases

This text of 80 N.E. 461 (Wallace v. Boston Elevated Railway Co.) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wallace v. Boston Elevated Railway Co., 80 N.E. 461, 194 Mass. 328, 1907 Mass. LEXIS 973 (Mass. 1907).

Pincite

Opinion

Hammond, J.

At the hearing the judge found that the allegation that the father, who was the next friend, was intoxicated and mentally incapable at the time he signed the agreement, was untrue. No fraud or collusion was alleged. The powers and duties of a next friend in a case like this were considered in Tripp v. Gifford, 155 Mass. 108. In that case the following language is used by Barker, J.: “ We see no reason why the next friend should not have authority to institute or to entertain negotiations for a settlement of the controversy. His position with reference to it is like that of a general guardian, or the guardian ad litem of an infant defendant. It is to be expected that he will act fairly and intelligently for the real interest of the plaintiff; but it cannot be said that every suit brought in the name of the infant is upon a good cause of action, or that, if well brought, the just amount of the recovery cannot be arrived at without a trial. . . . The next friend is intrusted with the rights of the infant so far as they are involved in the cause, and acts under responsibility both to the court and the plaintiff. It may well be considered to be within his qfficial duty to negotiate, if possible, a fair adjustment, without subjecting the plaintiff to the expense and risk of a trial.

“ When, however, he assumes' finally to conclude a settlement out of court, and to discharge the cause of action by" an agreement in pais, under which he accepts less than the plaintiff’s entire demand, he does more than is clearly within his authority to prosecute the action, and more than we think ought to be allowed with due regard to the protection of the infant. Unless such a settlement is affirmed, either in terms if brought to the attention of the court, or by an entry of judgment in regular course, it may fairly be held invalid. If it is not of such a nature as to commend itself to counsel, to whom, as well as to the next friend, the infant has a right to look for protection, it ought not to stand unless sanctioned by the court. It is • no injustice to a defendant to hold that the infant is not concluded until the cause is disposed of by judgment.”

In the case before us the judge found that certain acts of the next friend were tantamount to his discharge of the counsel [333]*333whose name was upon the record as counsel for the plaintiff. Whether that be so or not, it does not appear that the counsel objected to the settlement, but on the contrary he seems to have been content with it. The agreement of settlement was signed by the next friend, and then was filed in court by the counsel for the defendant, who neglected to sign it. Thereupon, without any special order of the court, the clerk entered up judgment on December 31, 1903, the next day for entering up judgment under the statute (R. L. c. 177, § 1) in cases ripe for judgment being the first Monday in January,1904. See Rule 23 of the Superior Court.

It is urged by the plaintiff that, the agreement not being signed by the counsel for the defendant, the judgment was for that reason invalid. But we do not think that position tenable. By filing the agreement the defendant indicated its assent and desire to have it ratified by the judgment of that court.

The judge before whom this petition was tried has found that the settlement was such a one as the court would have approved had the matter been brought to the court’s attention at the time of filing the agreement. Here then is a reasonable settlement fairly made, and both the next friend and the defendant desire to reduce the same to judgment; and a paper containing an agreement for judgment is filed in court. Under these circumstances we think that after the agreement for judgment was filed the case was ripe for judgment under R. L. c. 177, § 1, and that therefore in law it went to judgment at any rate on January 4, 1904, under that statute. And that is so even if the clerk failed to note the fact on the docket. Pierce v. Lamper, 141 Mass. 20. It is immaterial that the clerk made an unauthorized entry of judgment at an earlier date. Under these circumstances the settlement was in law valid, the ruling of the judge to that effect was correct, and the petition was rightly dismissed for that reason.

We see no error in the manner in which the judge dealt with the petitioner’s requests for rulings.

Exceptions overruled ; decree dismissing petition affirmed.

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Hammond, J.

At the hearing the judge found that the allegation that the father, who was the next friend, was intoxicated and mentally incapable at the time he signed the agreement, was untrue. No fraud or collusion was alleged. The powers and duties of a next friend in a case like this were considered in Tripp v. Gifford, 155 Mass. 108. In that case the following language is used by Barker, J.: “ We see no reason why the next friend should not have authority to institute or to entertain negotiations for a settlement of the controversy. His position with reference to it is like that of a general guardian, or the guardian ad litem of an infant defendant. It is to be expected that he will act fairly and intelligently for the real interest of the plaintiff; but it cannot be said that every suit brought in the name of the infant is upon a good cause of action, or that, if well brought, the just amount of the recovery cannot be arrived at without a trial. . . . The next friend is intrusted with the rights of the infant so far as they are involved in the cause, and acts under responsibility both to the court and the plaintiff. It may well be considered to be within his qfficial duty to negotiate, if possible, a fair adjustment, without subjecting the plaintiff to the expense and risk of a trial.

“ When, however, he assumes' finally to conclude a settlement out of court, and to discharge the cause of action by" an agreement in pais, under which he accepts less than the plaintiff’s entire demand, he does more than is clearly within his authority to prosecute the action, and more than we think ought to be allowed with due regard to the protection of the infant. Unless such a settlement is affirmed, either in terms if brought to the attention of the court, or by an entry of judgment in regular course, it may fairly be held invalid. If it is not of such a nature as to commend itself to counsel, to whom, as well as to the next friend, the infant has a right to look for protection, it ought not to stand unless sanctioned by the court. It is • no injustice to a defendant to hold that the infant is not concluded until the cause is disposed of by judgment.”

In the case before us the judge found that certain acts of the next friend were tantamount to his discharge of the counsel [333]*333whose name was upon the record as counsel for the plaintiff. Whether that be so or not, it does not appear that the counsel objected to the settlement, but on the contrary he seems to have been content with it. The agreement of settlement was signed by the next friend, and then was filed in court by the counsel for the defendant, who neglected to sign it. Thereupon, without any special order of the court, the clerk entered up judgment on December 31, 1903, the next day for entering up judgment under the statute (R. L. c. 177, § 1) in cases ripe for judgment being the first Monday in January,1904. See Rule 23 of the Superior Court.

It is urged by the plaintiff that, the agreement not being signed by the counsel for the defendant, the judgment was for that reason invalid. But we do not think that position tenable. By filing the agreement the defendant indicated its assent and desire to have it ratified by the judgment of that court.

The judge before whom this petition was tried has found that the settlement was such a one as the court would have approved had the matter been brought to the court’s attention at the time of filing the agreement. Here then is a reasonable settlement fairly made, and both the next friend and the defendant desire to reduce the same to judgment; and a paper containing an agreement for judgment is filed in court. Under these circumstances we think that after the agreement for judgment was filed the case was ripe for judgment under R. L. c. 177, § 1, and that therefore in law it went to judgment at any rate on January 4, 1904, under that statute. And that is so even if the clerk failed to note the fact on the docket. Pierce v. Lamper, 141 Mass. 20. It is immaterial that the clerk made an unauthorized entry of judgment at an earlier date. Under these circumstances the settlement was in law valid, the ruling of the judge to that effect was correct, and the petition was rightly dismissed for that reason.

We see no error in the manner in which the judge dealt with the petitioner’s requests for rulings.

Exceptions overruled ; decree dismissing petition affirmed.

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Bluebook (online)

80 N.E. 461, 194 Mass. 328, 1907 Mass. LEXIS 973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-boston-elevated-railway-co-mass-1907.

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