ANNA W. SCHENCK, administratrix, v. BOSTON ELEVATED RAILWAY COMPANY.

KNOWLTON, C. J. The plaintiff brought an action in the Municipal Court of the City of Boston and obtained a judgment against the defendant. From this judgment the defendant appealed to the Superior Court, but by an oversight failed to enter its appeal. By a like oversight the plaintiff failed to file a complaint for the affirmation of the judgment until after the expiration of a year from the time when the appeal should have been entered. An application for leave to enter such a complaint, filed later, having been denied, the plaintiff brought the present action. [Note p437-1] The defendant answered, setting up the former proceedings, and the plaintiff demurred to this answer. The plaintiff having afterwards obtained a verdict, the case is before us upon

Page 438

the defendant's exception to an order [Note p438-1] sustaining the demurrer to this answer.

The provisions of the R. L. c. 157, §§ 22, 23, permitting an entry of an appeal or a complaint for an affirmation of a judgment, by leave of court, within a year after the appeal should have been entered and not later, contain a strong implication that a remedy must be sought in this way, if either party, after an appeal, desires to have the case go to judgment. The appeal vacates the judgment, and the statute indicates that, unless the appeal is entered and prosecuted, a complaint must be entered to obtain an affirmation of the judgment, if any effect is to be given to the decision in the lower court. The decisions have settled the law accordingly. Campbell v. Howard, 5 Mass. 376. Ewer v. Beard, 3 Pick. 64. Ball v. Burke, 11 Cush. 80, 82. Rice v. Nickerson, 4 Allen 66, 68. Wells v. Stevens, 2 Gray 115.

The right of a plaintiff to discontinue his action is the same after an appeal as before. Derick v. Taylor, 171 Mass. 144. Carpenter &Sons Co. v. New York, New Haven, & Hartford Railroad, 184 Mass. 98.

The appeal having vacated the judgment in the former action and no further effectual prosecution of that action having followed, it is as if the former action had never been brought. The plaintiff's failure seasonably to make a complaint for an affirmation of the judgment was a discontinuance of the action. No final judgment having been entered in the case, it is not a bar to the present action. See Curtiss v. Beardsley, 15 Conn. 518.

Exceptions overruled.

C. S. French, for the defendant.

H. E. Perkins, for the plaintiff.