Fenton v. Kane

Knowlton, C. J. The question reported for our consideration is one of importance to the people of the Commonwealth. We have received intimations that, because it was submitted on an agreed statement of facts, with an expectation on the part of the judge and the counsel that the decision, whatever it might be, would come to this court for revision, the judge did not give the question so full consideration as he would have done had he supposed that his decision would be final. Even if this was so, we are unable to discover any jurisdiction in this court to deal with the question. It is provided in the R. L. c. 173, § 76, that decisions of a single justice “ upon questions raised upon an answer or plea in abatement . . . shall be final.” This statute has often been before the court, and has been applied in many cases to deprive this court of jurisdiction. Guild v. Bonnemort, 156 Mass. 522. Burrows v. Morton, 170 Mass. 569. Smith v. Ferguson, 168 Mass. 303. Young v. Providence & Stonington Steamship Co. 150 Mass. 550, and cases cited. In its nature and substance as well as in its form, the pleading of the trustee is an answer or plea in abatement. Under our decisions such an answer, made by a trustee, is an answer in abatement, like a similar answer made by a principal defendant. Thayer v. Ray, 17 Pick. 166. Hooper v. Jellison, 22 Pick. 250. This being an answer or plea in abatement, the decision of the single judge was final, and we cannot properly consider the question which the parties have attempted to present to us. In Harris v. Doherty, 119 Mass. 142, it appears from the original papers, and one would infer from the report, that no question of jurisdiction was referred to by the parties or considered by the court. The trustee’s motion in that case was not an answer or plea in abatement, for it contained no averment .of anything that did not appear of record. It is doubtful, whether it was a motion to dismiss; still less does it appear to be a motion to dismiss for defect of form of process. It is very plain that the ease does not change the law stated in Hooper v. Jellison and in Thayer v. Ray, ubi supra. Appeal dismissed.