Curran v. Burgess

Allen, J. The plaintiff in the original action took judgment against five defendants. Of one of them the court had no jurisdiction. It is conceded that this judgment was erroneous. Wright v. Andrews, 130 Mass. 149. Stone v. Wainwright, 147 Mass. 201. By virtue of the Pub. Sts. c. 187, § 2, “ When the judgment is reversed, the court shall render such judgment as the Superior Court should have rendered.” The Superior Court should have rendered judgment against the other four defendants in the original action. Two of these, however, have since died, so that no judgment can now be rendered against them as of the present time; and the plaintiff in error contends that no judgment can now be rendered, and that nothing can now be done except to reverse the former judgment. This would leave the original plaintiff, it is said, without remedy, since the statute of limitations would bar a new action. But we see no difficulty in entering judgment against the other four original defendants, nune pro tune, as of the time (as nearly as may be) when the Superior Court should have rendered it. Pub. Sts. c. 153, § 20. Springfield v. Worcester, 2 Cush. 52. Kelley v. Riley, 106 Mass. 339. Tapley v. Martin, 116 Mass. 275. Tapley v. Goodsell, 122 Mass. 176. Such judgment will accordingly be rendered. Ordered accordingly.