Browne v. Browne

Rugg, C. J. This is a writ of entry brought in the Superior Court in 1909. Thereafter, that court ordered it transferred to the Land Court under St. 1911, c. 433. The first question is, which court has jurisdiction. This depends upon the construction of St. 1904, c. 448, to the effect that the jurisdiction of “writs of entry, under the provisions of chapter one hundred and seventy-nine” of Revised Laws is transferred from the Superior to the Land Court. It appears from the record that the demandant’s title rests upon the levy of an execution on lands belonging to one Merrill H. Browne, the record title of which stood fraudulently in the name of the tenant. R. L. c. 178, § 47, enacts that in such case the levy shall be void unless an “action to recover possession” of the land is begun within one year from the return day of the execution. Such “action” is a writ of entry in the ordinary form. Clark v. Chamberlain, 13 Allen, 257, 260. It plainly is within the terms of R. L. c. 179. Therefore jurisdiction of the action was in the Land Court and not in the Superior Court at the time it was brought. First Congregational Society v. Metcalf, 193 Mass. 288. It was properly transferred to the Land Court under St. 1911, c. 433, § 1 of which provides that, “if an action has been brought in the Superior Court which ought to have been brought in the [79] Land Court, . . . the court may . . . order the action . . . transferred to the . . . [Land Court] . . . ; and it shall thereupon be entered and prosecuted as if it had been commenced therein, and all prior proceedings otherwise regularly taken shall thereafter be valid. ” This relates merely to procedure. It is in furtherance of a policy frequently exemplified in legislative acts to enable a party who has brought a cause seasonably to try it upon its merits, notwithstanding defects in the form or substance of pleadings, or error in the remedy asked, or mistake in the tribunal invoked, rather than to compel him to begin it anew. George v. Reed, 101 Mass. 378. The statute at bar is well within principles established by this court, and is constitutional. Wilson v. Head, 184 Mass. 515. Rogers v. Nichols, 186 Mass. 440. Converse v. Ayer, 197 Mass. 443, and cases cited at 454. Adams v. Adams, 211 Mass. 198. Ewell v. Daggs, 108 U. S. 143. It falls far short of some statutes which have been held valid, although they have been thought to go to the verge. See for example, Dunbar v. Boston & Providence Railroad, 181 Mass. 383. Where a plaintiff has not slept upon his rights, but has mistaken the jurisdiction of the tribunal to which he has appealed, no constitutional right is impaired by permitting the court in which the action wrongly was brought to transfer it to the one having power to adjudicate upon it. The terms of the statute under which the transfer was made to the Land Court required the procedure to be “as if it had been commenced therein. ” This fixes the date of the writ for the ascertainment of the procedure to be followed in the Land Court. Hence, this writ having been brought in 1909, St. 1904, c. 448 governs, and not St. 1910, c. 560, which in § 8 exempts pending causes from its operation. The case at bar was pending in 1910. Under St. 1904, c. 448, § 8, it is only after a decision by the Land Court of all issues raised that appeal can be taken to the Superior Court for a jury trial on the facts. This was pointed out in the memorandum of the judge of the Land Court filed in this case on January 19, 1912. After the decision of the Land Court, the tenant did not appeal to the Superior Court and enter his appeal there, but merely filed a motion on August 15 to have issues for a jury framed, which was not presented to the court until November 5, 1912. This did not amount to a claim [80] of an appeal under St. 1904, c. 448, § 8. Weeks v. Brooks, 205 Mass. 458. Mead v. Cutler, 194 Mass. 277, is plainly distinguishable in respect of the conduct of the appealing party. The motion for framing issues is a subsidiary subject, depending for its validity upon an appeal. The motion was properly denied, inasmuch as the tenant had failed to take any appeal. No error is disclosed upon the report. What has been said disposes of all the numerous pleas, appeals and exceptions of the tenant, or renders them immaterial. Exceptions overruled; appeals dismissed.