Martin v. Tapley

An amicus curios is heard only by the leave and for the assistance of the court, and npon a case already before it; he has no right to take the case up, by bill of ex ceptions or otherwise. After verdict for the plaintiff in an action of contract, the defendant died, and the plaintiff moved the court to strike from the record a plea of discharge in bankruptcy filed by the defendant since the verdict, and to enter judgment nunc pro tune as of a term before his death. At the hearing of these motions, no executor or administrator of the defendant having been appointed, his heir, and the sureties on the bond given to dissolve the attachment on the writ, were allowed by the presiding judge to appear for the purpose of being heard on these motions, but not as parties to the suit; and the counsel of the deceased defendant was heard in their behalf, and as amicus curios. Held, that neither the heir, nor the sureties, nor the amicus curios, could allege exceptions to an order of the judge granting the motions.

Petition'to establish the truth of exceptions. The material facts, appearing by the records referred to in the petition were as follows: An action of contract, brought by Amos P. Tapley against Lucretia W. Martin, was tried at November term 1870 of this court in Ef&ex, and a verdict returned for the plaintiff, and exceptions taken by the defendant at the trial were allowed by the presiding judge, and entered upon the law docket in that county at November term 1871. On February 26,1872, the defendant pleaded a certificate of discharge in bankruptcy, obtained January 20, 1872, in the District Court of the United States for the District of Maryland. On June 15,1874, Ambrose A. Ranney, Esquire, the attorney for the defendant, suggested of record that her death occurred June 12, 1874. On October 22, 1874, the plaintiff filed a motion that the plea of discharge in bankruptcy be taken off the record of this court, upon the ground that it would appear from an inspection of the whole record and final decree of the United States Court (copies of which were produced) that the certificate of discharge had not been granted, but had been refused. In November, 1874, the exceptions taken at the trial were argued by Mr. Ranney, as amicus curiae, and by the counsel for the plaintiff, and overruled. See Tapley v. Martin, 116 Mass. 275. At a subsequent hearing before Wells, J., on motions of the plaintiff that the plea of discharge in bankruptcy be ordered to be taken off the record, and that judgment be entered for the plaintiff nune pro tune as of November term 1871, James D. Martin, the son and heir of the deceased defendant, and Andrew C. Mudge and Penfield B. Goodsell, the sureties upon the bond given by the defendant to dissolve the attachment upon the writ, were “ allowed to appear for the purpose of being heard upon the pending motions to strike off the plea of bankruptcy and to enter judgment nunc pro tune, but not as parties to the suit; ” Mr. Ranney, counsel for the defendant in her lifetime, was heard as amicus curice, and also as counsel for the heir and the sureties and it was ordered “ that said motions be granted, and that said plea of discharge in bankruptcy be taken off the record of this court — it appearing that the alleged discharge, a copy of which was filed in support of said plea, was vacated by the court by which it purported to have been granted, before the filing of said plea, and at the term at which the alleged^ discharge was granted, and upon a final hearing and adjudication thereon a discharge was refused in the defendant’s lifetime ” — and that judgment be entered for the plaintiff in this action nunc pro tune as of November term 1871. Mr. Ranney, as counsel for the defendant during her lifetime, and as amicus curios, and as attorney of the heir and the sureties, tendered a bill of exceptions to this order and to various rulings at the hearing upon the motions; and the bill of exceptions was disallowed by the judge. The heir, the sureties, and Mr. Ranney, as counsel for the deceased defendant and as amicus curice, thereupon filed, this petition to establish the truth of the exceptions so tendered; alleging the facts above stated, and also that the defendant died leaving no estate of any kind in this Commonwealth, and there had never since been any property, effects or credits here to be administered upon, and therefore no letters of admininistration, either original or ancillary, had been or could be granted here; and that the exceptions alleged were true, and were disallowed by the judge solely because neither of the petitioners was so far a party to the suit or so far related to it as to be entitled' to be allowed or to prosecute a bill of exceptions. The petitioners moved that the petition be referred to a commissioner to hear the parties and report the facts to the court. The original plaintiff moved to dismiss the petition, because the petitioners were not entitled to allege exceptions.