Clearwater Laundry Co. v. Wiley

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation310 Mass. 255,37 N.E.2d 500
Decision Date31 October 1941

310 Mass. 255

37 N.E.2d 500


Supreme Judicial Court of Massachusetts, Suffolk.

October 31, 1941

October 28, 1941.

Present: FIELD, C.


Supplementary Process, Bond, Appeal recognizance, In supplementary process. Practice, Civil, Appeal from District Court to Superior Court. Superior Court, Jurisdiction. The Superior Court had no jurisdiction of an appeal from a sentence of a

District Court imposed under Section 19 of G. L. (Ter. Ed.) c. 224 where the appellant recognized, but without sureties.

SUPPLEMENTARY PROCESS, entered in the Municipal Court of the West Roxbury District of the City of Boston on December 26, 1940.

A motion to dismiss a purported appeal to the Superior Court was allowed by Hurley, J.

M. M. Klinor, for the debtor, submitted a brief. No argument nor brief for the creditor.

FIELD, C.J. The defendant, against whom a judgment was rendered in the Superior Court, was found guilty, in a [310 Mass. 256] proceeding on supplementary process in the Municipal Court of the West Roxbury District of Boston, of the plaintiff's charge of fraud and was sentenced to imprisonment. He appealed to the Superior Court. G. L. (Ter. Ed.) c. 224, Section 19. He was ordered by the Municipal Court "to recognize in the sum of two hundred dollars to enter and prosecute his appeal with effect" and to perform other conditions prescribed by the statute. He recognized without sureties. Upon motion of the plaintiff in the Superior Court the appeal was dismissed "for the reason that it appears the defendant failed to recognize with surety as required by Chapter 224, Section 19," and the case was remanded to the Municipal Court. The defendant excepted. See Morse v. O'Hara, 247 Mass. 183 , 185. The appeal was dismissed rightly. The governing statute requires that the defendant recognize with sufficient sureties. Compliance with this requirement was essential to the jurisdiction of the Superior Court. A recognizance without sureties was not such compliance. Principles applicable to waiver of defects of form do not apply to absence of sureties. See Henderson v. Benson, 141 Mass. 218 , 219. But even if such principles were applicable, the record shows no waiver of sureties. The motion to dismiss was made seasonably. See Putnam v. Boyer, 140 Mass. 235 , 237. In these respects there is no difference between a bond as in the cases cited and a recognizance as...

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3 cases
  • Lucier v. Norcross
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 31, 1941
    ...danger or was negligent came from the defendant. But the jury were not obliged to believe the defendant. If they did not believe him all [37 N.E.2d 500]that would be left would be that the deceased was killed upon the highway. This does not prove that he was negligent. He might have been pr......
  • Moskow v. Murphy
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • October 31, 1941
    ...application of said Section 135, as interpreted in the Home Owners' Loan Corp. case and in this case, as is suggested by the defendant, [310 Mass. 255] namely, that an excepting party who has presented a bill of exceptions to a judge for allowance "must . . . thereafter contact the judge ev......
  • Clearwater Laundry Co. v. Wiley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • November 1, 1941
    ...310 Mass. 25537 N.E.2d 500CLEARWATER LAUNDRY CO., Inc.,v.WILEY.Supreme Judicial Court of Massachusetts, Suffolk.Nov. 1, Exceptions from Superior Court, Suffolk County; Hurley, Judge. Proceeding by the Clearwater Laundry Company, Inc., against Theodore Wiley. The defendant was found guilty i......

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