Carroll v. Berger
| Decision Date | 27 February 1926 |
| Citation | 255 Mass. 132,150 N.E. 870 |
| Parties | CARROLL et al. v. BERGER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Plymouth County; Alonzo R. Weed, Judge.
Action of contract by Robert A. Carroll and others against Abraham Berger and others to recover on a replevin bond. Verdict for plaintiffs, and defendants except. Exceptions overruled.W. G. Rowe, of Brockton (E. A. MacMaster, of Bridgewater, of counsel), for plaintiffs.
G. C. Friel, of Brockton, for defendants.
This is an action on a replevin bond by the plaintiffs, in their position of obligees, against the defendants, as principals and sureties on the bond, for the breach of the condition therein which reads:
‘Now if the above bounden Berger et al. shall prosecute said action of replevin to final judgment then this obligation shall be void, otherwise to remain in full force and virtue.’
At the close of the evidence the defendants filed a written motion for a directed verdict in their favor on the ground that, upon the facts found, no breach of the condition of the replevin bond had been shown. The trial judge denied the motion and the defendants duly excepted. The jury found for the plaintiffs in the sum of $2,000, the penal sum of the bond. The hearing by a jury upon the question as to what amount execution should issue for was then waived by all parties, and the court determined and awarded execution in the sum of $1,105.28.
The following facts were proven in a trial before a jury of the case at bar: The defendants Berger had instituted a replevin action against the present plaintiffs by a writ issuing out of the police court of the city of Brockton, dated July 27, 1920, in which the ad damnum was $1,000. A the time the action was brought, district courts, which term includes police courts (G. L. c. 218), had concurrent jurisdiction with the superior court of actions of replevin where the value of the property ‘alleged to be detained does not exceed one thousand dollars.’ G. L. c. 218, § 19. See now St. 1922, c. 532. The property alleged to be unlawfully detained was seized by a deputy sheriff under the replevin writ on July 29, 1920. On its return day the replevin writ was entered in said police court and the bond (a copy of which is annexed to the record in the case at bar) was filed with the writ in that court.
On the return day the defendants filed an ‘Answer in abatement, * * * denying the jurisdiction of the court over them in this action,’ and assigned as causes why they should not be held to answer the plaintiffs' writ, in substance, that the value of the goods alleged to be unlawfully detained is in excess of $1,000 (G. L. c. 218, § 19), and that the bond in the sum of $2,000 is insufficient, in that ‘it is not in a sum equal to double the value of the goods alleged to be detained unlawfully’ (G. L. c. 247, §§ 2, 8). The defendants further prayed that the goods described in the plaintiffs' writ be ordered returned to the defendants and that the said defendants have judgment for the costs and damages.
After hearing, the police court ordered the action dismissed in that court. On the appeal of the plaintiffs in the replevin action in the superior court, the court submitted the following issues to the jury: (1) Did the value on July 27, 1920, of the Buick sedan automobile replevied exceed $1,000? and (2) Did the value on July 29, 1920, of the Buick sedan automobile replevied exceed $1,000? The date referred to in the first question was the date of the replevin writ and the date referred to in the second question was the date of the taking of the property by the officer, by virtue of the replevin writ. The jury answered ‘yes' to both questions. The case was thereupon dismissed by order of the court. The said automobile was never returned to the defendants in the replevin case, nor was any order of court made therefor. The clerk made the following entries in the replevin case: ‘Verdict for defendant upon answer in abatement, by order of court.’ ‘Judgment for defendants.’ ‘Execution for costs $38.33.’
[1][2] Upon the facts found by the court and jury that the value of the replevied property at the time of the suing out of the writ...
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