Amos P. Tapley v. Penfield B. Goodsell &Amp; Another

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Gray C. J.
• Citation: Amos P. Tapley v. Penfield B. Goodsell &Amp; Another, 122 Mass. 176 (Mass. 1877)
• Decision Date: 03 March 1877
• Parties: Amos P. Tapley v. Penfield B. Goodsell & another

122 Mass. 176

Amos P. Tapley v. Penfield B. Goodsell & another

Supreme Court of Massachusetts

March 3, 1877

Argued November 20, 1876 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Contract against Penfield B. Goodsell and Andrew C. Mudge. Writ dated February 13, 1875. The declaration was as follows: "And the plaintiff says the defendants executed to him a bond, a copy whereof is hereto annexed; that the plaintiff recovered final judgment for a large sum in the action named in said bond; that the obligors named in said bond did not pay to the plaintiff the amount which he recovered in said action, within thirty days after said judgment, and have not, nor has either of them, paid the same, or any part thereof." Annexed to the declaration was a copy of a joint and several bond, dated September 14, 1871, executed by Lucretia W. Martin as principal, and the defendants as sureties, purporting to be executed and delivered in the presence of a subscribing witness, and to have been approved by the plaintiff's attorney, and containing the following condition:

"The condition of this obligation is such, that whereas said Amos P. Tapley has caused the goods and estate of said Lucretia W. Martin, to the value of six thousand dollars, to be attached on mesne process in a civil action, by virtue of a writ bearing date the twenty-third day of October, A. D. 1868, and returnable to the Superior Court then next to be holden at Salem, within and for the county of Essex, in said Commonwealth, on the first Monday of December then (1868) next, in which writ said Amos P. Tapley is plaintiff and said Lucretia W. Martin is defendant; and whereas said defendant wishes to dissolve the said attachment according to law. Now, therefore, if the above bounden Lucretia W. Martin, Penfield B. Goodsell and Andrew C. Mudge shall pay to the plaintiff in said action the amount, if any, which he shall recover therein, within thirty days after the final judgment in said action, then the above written obligation shall be null and void, otherwise to remain in full force and virtue."

The defendants filed the following answer: "And now come the defendants, and for answer say, that they deny each and every allegation and statement in the plaintiff's declaration contained, the same as if each had been separately set out and a special denial made to each and every one of the same; that if any such judgment was obtained, it was void, rendered out of term time, when the court had no jurisdiction; that exceptions were taken to the ruling of the court, and exceptions and a petition for proof of exceptions were duly presented and are still pending."

At the trial in this court, before Lord, J., it was agreed that Lucretia W. Martin died on June 12, 1873; that Mudge died before the trial, and that the plaintiff discontinued as to him. The defendant admitted his own and Mudge's signatures. The plaintiff put in evidence, subject to the defendant's objection, the bond and the testimony of the subscribing witness, that he recognized his signature, but remembered nothing further about the matter; and also evidence that the bond was presented by Goodsell to the attorney for the plaintiff in the action therein described, for approval, and was approved by the attorney at Goodsell's request. The defendant asked the judge to rule that the plaintiff could not recover on his declaration, without an allegation that the bond was executed by Lucretia W. Martin, and that proof thereof was incompetent without such allegation; but the judge declined so to rule.

The plaintiff put in evidence the record of the case of Tapley against Martin, as follows: "Commonwealth of Massachusetts. Essex, ss. At the Supreme Judicial Court begun and held at Salem, within and for the county of Essex, on the first Tuesday of November, being the third day of said month, in the year of our Lord one thousand eight hundred and seventy-four." [The record set forth that at November term 1870, the case was tried, and a verdict returned for the plaintiff in the sum of $ 5714, and exceptions taken by the defendant at the trial allowed by the presiding judge; that on October 18, 1871, the bankruptcy of the defendant was suggested, and on February 26, 1872, the defendant filed a plea of her discharge in bankruptcy; that on June 15, 1874, the death of the defendant was suggested; that on October 22, 1874, the plaintiff filed his suggestions in reply to the defendant's plea of discharge in bankruptcy, praying that the said plea might be taken from the record; and that the exceptions taken were overruled by the full court.] The record concluded as follows: "And the court having heard and maturely considered the motions of the plaintiff, that the defendant's plea of discharge in bankruptcy be ordered to be taken off the record, and that judgment be entered for the plaintiff in said action, nunc pro tunc, as of the November term of this court in the year eighteen hundred and seventy one; and having heard the counsel for the plaintiff in support of said motions, and A. A. Ranney, Esquire, in opposition to the same; said Ranney having been counsel for the defendant during her life, and being heard as amicus curice, and also as counsel for James D. Martin, only son of said defendant, and for P. B. Goodsell and A. C. Mudge, sureties on the bond given to dissolve the attachment in this suit, the said J. D. Martin, Goodsell and Mudge having been allowed to appear for the purpose of being heard upon said motions, but not as parties to this suit, doth order, and it is hereby ordered, that said motions be granted, and that said plea of discharge in bankruptcy be taken off the records 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, nunc pro tunc, as of the November term of this court in the year eighteen hundred and seventy-one. To the foregoing order the said Ranney and the said James D. Martin, Goodsell and Mudge allege exceptions, which exceptions are disallowed by the court. It is therefore considered by the court, that the plaintiff recover against the defendant, as of November term, 1871, six thousand fifty-eight dollars and seventy-four cents, damage, and costs of suit, taxed at eighty-nine dollars sixty-five cents. Judgment, December 2, 1871."

It was agreed that the last day of November term, 1871, was December 2, and that the last day of November term, 1874, was November 21.

The defendant introduced in evidence, subject to the plaintiff's objection, the following papers: 1st. The application of Goodsell and Mudge to be admitted to defend that action, with an indorsement on the same by Wells, J., under date of December 1, 1874, allowing them to appear for the purpose of being heard upon the pending motions to strike off the plea of discharge in bankruptcy and to enter judgment nunc pro tunc, but not as parties to the suit. This paper was also indorsed as filed in the clerk's office December 8, 1874. 2d. An affidavit of Mr. Ranney, with similar indorsements. 3d. The motion of the plaintiff to enter judgment nunc pro tunc, which was indorsed by Wells, J., "Handed to the court November 28, 1874, and to be filed as of November term, 1874;" and which was indorsed as filed in the clerk's office January 8, 1875. 4th. The order of the court that the defendant's plea of discharge in bankruptcy should be taken off the files, and judgment entered nunc pro tunc, which was indorsed by Wells, J., "To be entered as of November term, 1874," and indorsed as filed in the clerk's office January 8, 1875. 5th. A copy of the docket entries in the case of Tapley v. Martin, which, so far as material, were as follows: "1874, Oct. 22. Plaintiff's suggestions in reply to plea, &c., as on file. Nov. 18, continued nisi. Dec. 8. Motion of P. B. Goodsell & al. for leave to defend, &c. Motion of J. D. Martin for leave to defend, &c. A. A. Ranney allowed to appear, as indorsed on his affidavit on file. 1875, Jan. 8. Plaintiff's motion to enter judgment nunc pro tunc, affidavit of Amos P. Tapley, representation of J. D. Martin, and Mr. Ranney's objections to motions, handed to the court, Nov. 28, 1874, and to be filed as of Nov. term, 1874.' Paper submitted by J. D. Martin et ali. filed by A. A. Ranney, Esq., Dec. 1, 1874,' and to be filed by the clerk as of Nov. term, 1874. Order of the court that plea of discharge be taken off the record, and judgment entered, nunc pro tunc. Exceptions disallowed. 1874, Nov. 21. Judgment for plaintiff for $ 6058.74, damages, and $ 89.65, costs, as of Dec. 2, 1871." [See Tapley v. Martin, 116 Mass. 275; Martin v. Tapley, 119 Mass. 116.]

The judge ruled, against the defendant's objection, that on so much of the evidence as would be competent, the...