
    James D. Martin & others vs. Amos P. Tapley.
    Essex.
    Nov. 6. — 9, 1875.
    Wells & Morton, JJ., absent Endcott, J., did not sit.
    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.
    F. W. Hurd, (A. A. Ranney with him,)
    for the petitioners. This is a petition to prove exceptions taken to the right of the court to enter judgment for the plaintiff nune pro tune after the death of the defendant. The objection is raised that there is no party before this court to take exception. The theory upon which such a judgment is entered is, that the court by a fiction goes back to the time when the parties were living, and enters such judgment as would then have been entered but for the delay of the law. This is expressed in Currier v. Lowell, 16 Pick. 170, 173, as follows: “ The court will go back to the time when the judgment might have been rendered on the verdict, if no motion had been made which prevented it.” In Kelley v. Riley, 106 Mass. 339, 342, it is said that “ the court in now rendering judgment will go back to the time when it would have been rendered if no action had been taken to prevent it.” In Bridges v. Smyth, 8 Bing. 29, 32, Tindal, C. J., said: “ The case therefore does not depend on the St. of Car. II., but on the rule of common law, that where parties are hung up by act of the law, neither of them loses his right, but eventually judgment is entered nune pro tune, as if the party were still alive.” Similar expressions are found in a great number of cases. Freeman on judgments, (2d ed.) § 56 § seq.
    
    If this is the theory for the purpose of entering judgment, is it not the same for the purpose of showing cause why such judgment should not be entered ? In Miles v. Bough, 15 L. J. (N. S.) Q. B. 30, 32, Wightman, J., said: “ If it could be shown that the defendants or any third person would be prejudiced by .entering the judgment as prayed, that would no doubt be ground for the court refusing to interfere; but in the absence of any well founded objection of that kind, it appears to me that the rule for entering the judgment nune pro tune must be made absolute.”
    The cases are numerous where arguments have been entertained by courts upon their power to render a judgment nune pro tune after the death of one party, and no suggestion has ever been made that there was no party in court competent to resist the motion. The arguments proceed upon the fiction that they are had while the parties are living. Currier v. Lowell, 16 Pick. 170. Mayor of Norwich v. Berry, 4 Burr. 2277. Abington v. Lipscomb, 11 L. J. (N. S.) Q. B. 15. Miles v. Williams, 9 Q. B. 47 ; S. C. 16 L. J. (N. S.) Q. B. 56. Griswold v. Hill, 1 Paine C. C. 483. Heathcote v. Wing, 11 Exch. 355. Freeman v. Tranah, 12 C. B. 406.
    The petitioners were allowed to be heard before a single judge as to whether or not the record in this case was ready for final judgment; and if allowed to be heard upon that question there, have they not the right to ask a review of the ruling made upon matters of law? They were admitted as parties so far as the motion to enter judgment was concerned, and ask now only to be heard upon that same motion. In Kelley v. Riley, 106 Mass. 339, the exceptions were allowed after death of the party excepting. In Freeman v. Rosher, 13 Q. B. 780, after verdict for the plaintiff, with leave reserved to move a nonsuit or verdict for the defendant, the defendant died before a motion could be made; and the rule nisi was afterwards obtained in his name. Suppose in Kelley v. Riley the exceptions as filed had been disallowed; might they not have been proved ? It may be said that in the above cases the exceptions were taken while the parties were living, but they were such as must have been taken at or before verdict, which could only be had while the parties were living; in the case at bar, the exceptions arise from proceedings that could only be taken after the death of one of the parties. Now it must either be held that the court proceeds ex parte in fiction as well as in fact, in allowing judgment nunc pro tune after death of one of the parties, or that the decision of a single judge is final upon the legal power to enter such a judgment. Suppose, when Kelley v. Riley was sent back to the Superior Court, a question had arisen as to the legal power of the court to enter judgment; would the decision of a single judge of the Superior Court have been final ?
    
      O. W. Holmes, Jr., contra.
   Gray, C. J.

The authorities cited for the petitioners show that the counsel for a deceased party might be heard as amicus eurice before the full court, if the exceptions sought to be established had been allowed and entered in his client’s lifetime; be- • cause the delay in disposing of them would be deemed the act of the court; Tapley v. Martin, 116 Mass. 275; Bridges v. Smyth, 8 Bing. 29; S. C. 1 Mo. & Sc. 93; Miles v. Williams, 9 Q. B. 47; or if the exceptions had been taken by the party in his lifetime, though not allowed or entered until after his death ; because they would be his own exceptions, seasonably alleged and tendered by himself, and the subsequent allowance and entry of them might be treated as mere forms to put them in order for hearing ; Kelley v. Riley, 106 Mass. 339; or if the ruling below bad been in his favor, and the questions of law reserved on the motion of the other party; Currier v. Lowell, 16 Pick. 170 ; or if the questions of law had been reserved by the judge himself at the trial or hearing, and brought before the full court by his report, or by motion pursuant to leave so reserved. Springfield v. Worcester, 2 Cush. 52, 62. Freeman v. Rosher, 13 Q. B. 780.

But the difficulty in this case lies deeper. None but a party to a suit has a right to allege exceptions, or to file a petition to establish the truth thereof. Gen. Sts. c. 115, §§ 7, 11. At the time when these questions of law were first raised, the defendant was dead, and no executor or administrator had, so far as appears, been appointed or named. The heir of the defendant had no right to appear as a party to a personal action. The sureties upon the bond to dissolve the attachment were not, and could not be made, parties to the action in their own name; and they could not use the name of the defendant, because she was dead, uc$r of her executor or administrator, because it does not appear that there was any. Both the heir and the sureties were allowed to come in and be heard, not as parties to the suit, but, just as any stranger might be, for the information of the judge before whom the motions were pending. The counsel for the deceased defendant had no right to be heard as such, because his authority to act in her behalf had been revoked by her death. Like the heir and the sureties, he could be heard only as amicus curiae. An amicus curiae is heard only by the leave and for the assistance of the court, and upon a case already before it. He has no control over the suit, and no right to institute any proceeding therein, or to bring the case from one court to another, or from a single judge to the full court, by exceptions, appeal or writ of error. 4 H. VI. 16, pl. 16. Isley’s case, 1 Leon. 187. Vin. Ab Amicus Curiae. Knight v. Low, 15 Ind. 374.

None of the petitioners being parties to the suit, the exceptions alleged by them were not legally alleged, and were rightly disallowed by the presiding judge, and the petition to establish the truth of them must be Dismissed.  