Brotkin v. Feinberg
| Decision Date | 04 December 1928 |
| Parties | BROTKIN v. FEINBERG. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; Frederick J. MacLeod, Judge.
Action by Mary Brotkin against Louis Feinberg, wherein defendant died and Jennie Feinberg was appointed administratrix of his estate and filed special appearance and motion to dismiss. Motion to dismiss was allowed and plaintiff's motion to summon administratrix denied, and plaintiff brings exceptions. Exceptions overruled.
M. Entin, of Fall River, for plaintiff.
W. I. Badger, of Boston, for defendant.
This action of tort is for injuries sustained by the plaintiff because of the defendant's negligence. While the action was pending, the defendant died. Jennie Feinberg was appointed administratrix of his estate and filed a bond on June 5, 1925. On November 29, 1927, a statement was filed suggesting the death of Louis Feinberg, the defendant, on May 17, 1925; thereupon the administratrix filed a special appearance and a motion to dismiss. This motion was, in effect, that Jennie Feinberg is the duly appointed administratrix of the estate of Louis Feinberg; that she appeared specially for the purpose of pleading to the jurisdiction of the court; that Louis died on May 17, 1925; that she was duly appointed administratrix of his estate and duly qualified by giving bond; that she gave notice of her appointment as required by law and as ordered by the probate court, ‘all of which appears by the records of the said probate court’; that no citation had been taken out by the plaintiff requiring the administratrix to appear and defend the action; that the time within which such citation may be taken out has expired under G. L. c. 228; and prays that the action be dismissed.
Under G. L. c. 228, § 4, ‘In a personal action the cause of which survives,’ if there is only one plaintiff or one defendant and he dies after the action is begun, the action may proceed and be prosecuted by or against his executor or administrator; the ‘death shall be suggested on the record’; if the executor or administrator does not voluntarily appear, the surviving party may take out a citation requiring the appearance of the executor or administrator. Section 5 of this chapter directs that the citation ‘shall not issue after the expiration of one year from the time such executor or administrator has given bond, if he has given the notice of his appointment as required by law.’ This section clearly provides that the court has no power to cite in an administrator to defend an action when one year has elapsed after the time he had given his bond, if due notice of his appointment has been given as required by law.
[1] The record shows that the death of Louis Feinberg on May 17, 1925, was suggested; that the administratrix appeared specially for the purpose of filing a motion to dismiss; and the bill of exceptions recites that she filed her bond as such administratrix on June 5, 1925. But the record does not show that she gave notice of her appointment as required by law. This does appear, however, in the motion to dismiss. If in addition to giving the bond the administratrix had given notice of her appointment, she could not be cited in to defend that action; the short statute of limitations prohibited this and the court had no power to require her to take up the defense of the action. The fact that the death of the defendant was to be suggested on the record did not require the administratrix to make this suggestion within one year after she had given bond. It must appear on the record, but the failure to make this suggestion does not stop the running of the statute of limitations, and after one year, as the bond was filed and if notice was given as required by law, the plaintiff could not summon the administratrix to defend.
The case is before us on the plaintiff's exceptions to the allowance of the motion to dismiss and to the denial of the motion of the plaintiff to summon the administratrix. The bill of exceptions shows that the plaintiff filed a motion to cite in the administratrix on December 14, 1927; that the motion was heard together with the administratrix's motion to dismiss; that at the hearing the administratrix introduced in evidence a certified copy of the record of the probate court, showing that an affidavit had been filed by the administratrix that she had given notice of her appointment within the time required by law.
[2] The plaintiff contends that the motion to dismiss was not proper. A motion to dismiss must be based on matter appearing on the record. As a question of technical pleading the motion to dismiss was not correct, because it did not appear on the record that notice of the appointment of the administratrix was given. This fact was set forth at the hearing when the record of the probate court was introduced showing that the affidavit of notice was filed in the probate court. See Pitman v. Tremont Nail Co., 2 Allen, 531, 532;Crosby v. Harrison, 116 Mass. 114.
[3][4][5] It appeared that there was a hearing on...
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