Contakis v. Flavio

• Decision Date: 22 May 1915
• Citation: 221 Mass. 259,108 N.E. 1045
• Parties: CONTAKIS v. FLAVIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 259

108 N.E. 1045

CONTAKIS v. FLAVIO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1915

COUNSEL

Harry E. Burroughs, of Boston, for respondent.

OPINION

PIERCE J.

Carmine Flavio, administrator of the estate of Emelio Flavio in the principal action, elected to sue all the members of a partnership doing business under the firm name of Vassara Fruit Company, jointly in an action of tort. Four persons among whom was the petitioner, Peter Contakis, were named in the writ, and the return thereon showed due service upon them all. Final judgment was entered against all the defendants on April 21, 1914, and on the day following (April 22, 1914) execution duly issued. On August 22, 1914, Contakis, who had been arrested on an alias execution, applied to the municipal court of the city of Boston for the oath for relief of poor debtors, and recognized for his appearance in the poor debtor session of that court. On September 1, 1914, before any default, Contakis filed a petition in the superior court asking that the judgment of April 24, 1914, be vacated and that a supersedeas of the execution be issued thereon. As reason therefor he alleged that no service ever was made upon him; that the attorney who accepted service for him had no authority so to do; that he (the petitioner) was not a member of the defendant firm at the time a servant of the firm caused the injury complained of, nor was he such at the time of the suing out of the writ; that he knew nothing of the action until some time after judgment was obtained thereon and that at the time the action was brought and for a long time thereafter he was not in the commonwealth, but was in the kingdom of Greece.

On October 23, 1914, after due notice, an order was entered in the superior court that a supersedeas of said execution should issue on the filing of a bond of $5,000. On January 19, 1915, a bond was filed in that court and approved after hearing; and thereupon a supersedeas issued. On February 2 1915, Flavio filed a motion in the superior court asking, among other things not material to this issue, that the order of supersedeas might be 'so modified as not to deprive him of his right to collect said execution from the other defendants named in said action.' The presiding judge ruled that the motion in that respect should be denied, and 'believing that this question should be determined before final hearing upon the petition to vacate judgment,' he reported the question to this court. 'If the ruling was right' the order 'is to be confirmed. If erroneous, then there is to be a hearing upon the question of the modification of said supersedeas asked for by the said Flavio.'

The plaintiff Flavio, before purchasing his writ, had an election to sue each partner severally, or to sue more than one jointly. 1 Notes to Saunders' Reports, 472, 473, 475. He elected to join all in the writ, prosecuted his action against all, and obtained a joint final judgment. By leave of court it was within his power and right, at any time before final judgment, to discontinue as to as many as he chose and to proceed to prosecute his action against those remaining. R. L. c. 173, § 48; Mulchey v. Methodist Religious Society, 125 Mass. 487, 491.

Having prosecuted his action to final judgment against all, that...