Opinion
May 21, 1935.
June 26, 1935.
Present: RUGG, C.J., PIERCE, FIELD, LUMMUS, QUA, JJ.
Trustee Process. Jurisdiction. Practice, Civil, Amendment.
Where one of the counts in the declaration in an action brought by trustee writ was for libel, the court had no jurisdiction of the action nor power to allow an amendment omitting that count.
TORT. Writ dated March 29, 1933.
In the Superior Court, a motion by the defendant to dismiss the action was allowed by Greenhalge, J., who reported the allowance for determination by this court.
M. Caro, ( T.C. O'Brien with him,) for the plaintiff.
F.N. Cummings, for the defendant.
This action was brought by a trustee writ. When it was entered the declaration contained two counts. The first count was for libel. The second count, we will assume in favor of the plaintiff, but without deciding, was for malicious interference with the procuring of a contract and not for libel. After the entry of the writ and before the defendant had appeared, the plaintiff procured ex parte the allowance of a substitute declaration in a single count which we will likewise assume was not for libel. A motion by the defendant to dismiss was denied, but thereafter, during the trial of the case on the merits before another judge, a second motion to dismiss was allowed on the ground that the court had no jurisdiction of the case.
The ruling was right. G.L. (Ter. Ed.) c. 246, § 1, forbids the commencing of an action for libel by trustee process. At the time it was entered and therefore by necessary intendment at the time it was commenced, this was an action for libel. The second count cannot save it. It was still an action for libel, even though it may also have been for something else. The court never had jurisdiction to entertain the action or to amend the declaration. Guarino v. Russo, 215 Mass. 83. MacCormac v. Hannan, 248 Mass. 86. Poorvu v. Weisberg, 286 Mass. 526, 538.
The question of jurisdiction can be raised at any stage of the case, even for the first time at the argument in this court. Cheney v. Boston Maine Railroad, 227 Mass. 336, 338.
Order dismissing action affirmed.