Castaline v. Swardlick

• Decision Date: 22 September 1928
• Citation: 264 Mass. 481,163 N.E. 62
• Parties: CASTALINE et al. v. SWARDLICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

264 Mass. 481

163 N.E. 62

CASTALINE et al.

v.SWARDLICK.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 22, 1928.

Exceptions from Supreme Judicial Court, Suffolk County.

Action by Harry Swardlick against Samuel Castaline and others. Judgment for plaintiff, defendants bring error, and plaintiff brings exceptions to an order reversing the judgment. Exceptions sustained, and judgment affirmed.

Harry Bergson and Harry Kalus, both of Boston, for plaintiff.

Harry E. Burroughs and Stanley A. Dearborn, both of Boston, for defendants.

RUGG, C. J.

This is a petition for a writ of error to reverse a judgment entered in the superior court in an action of contract, in which the defendant in error was plaintiff and the plaintiffs in error were defendants. The return shows that the plaintiff's declaration in that action alleged that there was entered in our superior court in March, 1916, the case of Harry Swardlick v. Fannie Barrett, wherein the Connecticut Fire Insurance Company was named as trustee; that the defendant Rubinstein [one of the plaintiffs in error], desiring to dissolve according to law the attachment of funds alleged to be in the hands of the trustee, gave a bond in which he was principal and the codefendants, Sarah Kaufman and Samuel Castaline [the other plaintiffs in error] were sureties, running to said Swardlick, in the sum of $2,000. The condition of the bond, so far as here material, was that if ‘said Fannie Barrett shall within 30 days after final judgment in the aforesaid action [Swardlick v. Barrett], * * * pay to the sad plaintiff [Swardlick] the amount for which the said trustees may be charged, * * * then this obligation shall be void, otherwise it shall be and remain in full force and virtue.’ The date of the bond was the twenty-third day of February, 1916. The return further shows that action was brought upon that bond by writ dated the thirteenth day of December, 1922. The defendants in that action were duly served with process and severally answered, each pleading a general denial and payment. Judgment was entered and damages assessed for the plaintiff on the twenty-seventh day of April, 1925.

The ground upon which the petition for the writ of error is based is that by virtue of R. L. c. 189, § 66, now G. L. c. 246, § 67, the court had no jurisdiction of the cause of action set forth in that declaration. That statute provides that ‘no action on such bond shall be commenced after the expiration of six years from the date thereof.’ Manifestly the action sought to be reviewed was ‘on such bond’ and was ‘commenced after the expiration of six years from the date thereof’; but the action proceeded to judgment without that fact being pleaded by any of the defendants or otherwise brought specially to the attention of the court, so far as disclosed by the record. If a demurrer based on G. L. c. 246, § 67, had been interposed to the declaration, we assume that it would have been sustained. Quinn v. Quinn, 260 Mass. 494, 157 N. E. 641. Clearly, if that had been seasonably pleaded as a defense, the plaintiff could not have prevailed. The essential question is whether the facts narrated and disclosed by the present record deprived the superior court of jurisdiction to enter the judgment sought to be reviewed.

[1][2] There is a class of cases declaring the principle in substance that where a right and a remedy have been created by statute, and the time within which and the method according to which they must be pursued are prescribed as conditions, the court has no jurisdiction to entertain proceedings for relief begun at a later time or prosecuted in a different method. Compliance with the statutory requirements is treated as a condition precedent to the existence of the cause of action. ‘Time has been made of the essence of the right, and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.’ The Harrisburg, 119 U. S. 199, 214, 7 S. Ct. 140, 147 (30 L. Ed. 358);International Paper Co. v. Commonwealth, 232 Mass. 7, 10, 121 N. E. 510;Pratt & Forrest Co. v. Strand Realty Co. of Lowell, 233 Mass. 314, 318, 123 N. E. 771;Crosby v. Boston Elevated Railway, 238 Mass. 564, 566, 131 N. E. 206;Sterling v. Frederick Leyland & Co., Limited, 242 Mass. 8, 13, 136 N. E. 60;L'Huilier v. Fitchburg, 246 Mass. 349, 352, 141 N. E. 122;Nicklas v. New Bedford, 250 Mass. 471, 475, 146 N. E. 41;Hester v. Brockton, 251 Mass. 41, 146 N. E. 224;Ansell v. Boston, 254 Mass. 208, 213, 150 N. E. 167;Gass v. Bean, 5 Gray, 397;City of Revere v. Special Judge of District Court of Chelsea, 262 Mass. 393, 160 N. E. 431. Whether a writ of error would lie in all such cases need not be considered because we are of opinion that it is not available in the case at bar. The action sought to be reviewed was contract upon a bond. A bond, unless given for an unlawful consideration, constitutes after breach a good cause of action. A bond not in strict conformity to requirements of a statute may be enforced as a bond at common law. Holbrook v. Klenert, 113 Mass. 268;Mosher v. Murphy, 121 Mass. 276.

[3][4] The words of the ordinary statutes of limitations are that the actions of the several kinds described ‘shall be commenced only within’ the times specified after the causes of action accrued. G. L. c. 260, §§ 1, 2, 3, 4, 5, 21, 31....