59 Mass. 501 - Parker v. Jackson — 59 Mass. 501

Sarah O. Parker vs. William M. Jackson. An action removed from the court of common pleas to this court, on the affidavit of the defendant or of some one on his behalf, if not entered by either party at the next term of the court, will not be allowed to be entered at a subsequent term. This was a petition for leave to enter an action, in which the damages demanded exceeded in amount the sum of six hundred dollars, which was originally made returnable to the court of common pleas at the April term, 1849, and, at the same term, removed to this court on the affidavit of the defendant’s counsel, but which was not entered by either the defendant or the plaintiff at the last November term. F. W. Sawyer, for the plaintiff, cited St. 1840, c. 87, § 3, which provides, that when an action is removed from the court of common pleas to the supreme judicial court, on the affidavit of the defendant or of some one in his behalf, the defendant “ shall enter the said action therein at the next term thereof for the same county; and if he shall not enter the same on the first day of the term, the other party may enter the same.” And he argued, that to refuse to grant this petition, would be to enable the defendant to take advantage of his own omission to perform the duty required of him by the statute. T. A. Watson, for the defendant. — By the Court. (majority) By the Court. If the plaintiff wished to have the action entered in this court, she should have entered it at the first term. The statute authorizing appeals to be entered upon petition, at a term subsequent to that appealed to, in certain cases, Rev. Sts. c. 81, § 34, does not apply to this case. In that case, attachments are dissolved and bail discharged, whereas it is very questionable whether they would be, if this cause were to be legally entered and prosecuted. If attachments and bail would not be reinstated by the entry of the action now, its entry would afford the plaintiff little or no advantage over bringing a new action. The reasons applicable to the entry of an appeal after the time do not apply to the case of an original action, when the application for such entry is made by the plaintiff. To allow it to be entered now, would lead to great irregularity The petition must be dismissed.