
    George Curran vs. William Burgess.
    Bristol.
    October 29, 1891.
    November 27, 1891.
    Present: Allen, Holmes, Morton, & Barker, JJ.
    
      Judgment — Death of Co-defendant — Entry nunc pro tune—Writ of Error.
    
    If a judgment is recovered in the Superior Court against five defendants, of one of whom the court has no jurisdiction, and of the other four, against whom judgment should have been rendered, two die, so that a reversal of the former judgment would leave the original plaintiff remediless, since the statute of limitations would bar a new action, this court may, on a writ of error, under the Pub. Sts. c. 187, § 2, and c. 153, § 20, order a judgment to be entered in that court against such other four defendants, nunc pro tune, as of the time, as nearly as may be, when it should have been rendered against them.
    Writ of error, to reverse a judgment of the Superior Court.
    At the hearing, before Knowlton, J., it appeared that William Burgess, the defendant in error, brought an action against George Curran, the plaintiff in error, Thomas Curran, Samuel Ramsbottom, Joseph Simpson, and Lawrence Fielding, on a joint promissory note dated September 21, 1874, and made payable to the Currans, and indorsed by them, and signed by the three last named; that on October 16, 1890, judgment was entered in the Superior Court in favor of Burgess against all five of these defendants; that at the time the action was brought and at the entry of judgment Ramsbottom was not an inhabitant or resident of this Commonwealth, and had no attachable property here, and no personal service was made upon him, the only service upon him being by publication; that due and sufficient service was made on all the other defendants; that Thomas Curran and Joseph Simpson had died since the entry of judgment and before the petition for this writ of error was brought, neither leaving any property, and no administration had been taken out on the estate of either; that the defendant in error was willing to discontinue as to both of these and as to Rams-bottom : that the defendant in error had apparently now no remedy upon the note upon which the original judgment was entered, the same being barred by the statute of limitations; and that an action had been brought by the defendant in error upon the judgment which was still pending.
    The plaintiff in error contended that the entry should be either, “Judgment for the plaintiff in error, the former judgment reversed,” or simply, “ Judgment reversed.”
    The defendant in error contended that the entry should be, “ Judgment reversed, and judgment rendered against the defendants George Curran and Lawrence Fielding for the sum for which the original judgment was rendered, with interest added from the date of the original judgment,” or some other entry which shall give to the defendant in error such judgment as the Superior Court should have ordered in the original action.
    The judge was of opinion that the defendant in error was right in his contention, but, at the request of the plaintiff in error, reported the case for the consideration of the full court, such entry to be made as law and justice might require.
    
      M. G. B. Swift, (G. Grime with him,) for the plaintiff in error.
    
      M. Meed, for the defendant in error.
   Allen, J.

The plaintiff in the original action took judgment against five defendants. Of one of them the court had no jurisdiction. It is conceded that this judgment was erroneous. Wright v. Andrews, 130 Mass. 149. Stone v. Wainwright, 147 Mass. 201. By virtue of the Pub. Sts. c. 187, § 2, “ When the judgment is reversed, the court shall render such judgment as the Superior Court should have rendered.” The Superior Court should have rendered judgment against the other four defendants in the original action. Two of these, however, have since died, so that no judgment can now be rendered against them as of the present time; and the plaintiff in error contends that no judgment can now be rendered, and that nothing can now be done except to reverse the former judgment. This would leave the original plaintiff, it is said, without remedy, since the statute of limitations would bar a new action. But we see no difficulty in entering judgment against the other four original defendants, nune pro tune, as of the time (as nearly as may be) when the Superior Court should have rendered it. Pub. Sts. c. 153, § 20. Springfield v. Worcester, 2 Cush. 52. Kelley v. Riley, 106 Mass. 339. Tapley v. Martin, 116 Mass. 275. Tapley v. Goodsell, 122 Mass. 176. Such judgment will accordingly be rendered.

Ordered accordingly.  