Dalton-ingersoll Co. v. Fiske

• Citation: 175 Mass. 15,55 N.E. 468
• Parties: DALTON--INGERSOLL CO. v. FISKE.
• Decision Date: 01 December 1899
• Court: United States State Supreme Judicial Court of Massachusetts

175 Mass. 15

55 N.E. 468

DALTON--INGERSOLL CO. v. FISKE.

Supreme Judicial Court of Massachusetts, Middlesex.

December 1, 1899

COUNSEL

C. T. Cottrell, for plaintiff.

Geo. L Mayberry, for defendant.

OPINION

LATHROP J.

This is an action against the principal and sureties upon a bond to dissolve an attachment, brought originally in the police court of Newton, and taken on appeal by the plaintiff to the superior court. It is now before us after a finding for the plaintiff, on the exceptions taken by one Mehan, a surety on the bond, who alone defended the case in the superior court.

The first question before us is whether the case was properly before the superior court. It appears from the record of the police court that a finding for the defendant was made on April 28, 1894, and the 'time of appeal extended for seven days.' The case was duly entered in the superior court. On February 5, 1897, the defendant Mehan moved that the appeal be dismissed for want of jurisdiction, for the reason that it did not appear by the record that the appeal was seasonably taken within 24 hours after the judgment of the police court. St. 1893, c. 396, §§ 24, 25. Under these sections the lower court may extend the time for filing the appeal bond, but not the time for taking the appeal. The plaintiff, on February 10, 1897, filed a motion that the record be sent back to the police court to be amended alleging that the facts were that the appeal was duly taken within the time prescribed by law, and the time for filing the bond or perfecting the appeal was extended seven days, for cause shown, and $100 was deposited in lieu of bond within seven days. On February 17, 1897, the court overruled the motion of the plaintiff and allowed the motion to dismiss the appeal, and directed the clerk to make an entry on the docket of 'Appeal dismissed,' which entry was accordingly made. On February 27, 1897, the following entry was made on the docket: 'Continued for judgment to await proceedings on mandamus proceedings.' Between February 17th and February 27th, the session of the court had adjourned without day. After the adjournment the plaintiff filed three motions,--the first to vacate the order dismissing the appeal; the second, to file the amended record; the third, to grant a new trial. These motions were allowed. The amended record showed that the appeal had been seasonably made. In the following September, when the case was reached in its order, the defendant asked the court to rule that all motions and orders in the case which purported to be made after the entry of February 17, 1897, could not have the effect of vacating or setting aside the judgment dismissing the appeal for want of jurisdiction, which was entered on that day. The court refused so to rule, and the defendant excepted. We are of opinion that the fact that the court had adjourned without day is of no consequence. Since St. 1885, c. 384, § 2, both the supreme judicial court and the superior court are always open, and terms no longer exist. See Dudley v. Keith, 153 Mass. 104, 107, 26 N.E. 442; James v. Lumber Co., 153 Mass. 361, 26 N.E. 995; Bailey v. Edmundson, 168 Mass. 297, 46 N.E. 1064; Tim v. Rosenfeld, 168 Mass. 393, 47 N.E. 106. The twenty-seventh rule of the superior court provides: 'On the first Monday of every month judgment may be entered, in all actions ripe for judgment, under a general order of the court; and the court or any justice may at other times order judgment to be entered in any action.' An order dismissing an appeal is not a judgment, and until the first Monday of the following month had expired it was clearly within the power of the court to continue the case. Pierce v. Bamper, 141 Mass. 20, 6 N.E. 223. The case being before the court when the three motions were made, the court had the power to hear and decide them. The defendant's first exception must, therefore, be overruled.

The remaining exceptions relate to the question whether the judgment was regularly and properly entered in the original action in which the bond was given. It appeared that the original action was begun by a trustee process, and the bond in suit was given to dissolve the attachment, under Pub. St. c. 161, § 122 et seq. While the bond was signed by the principal and his sureties, and properly described the action, it did not contain the name of the principal in the condition, but read as follows: 'Now, therefore, if the above-bounden David J. Ingalls and James J. Mehan shall pay to the plaintiff in said action the amount, if any, that he may recover therein, within thirty days after the final judgment in said action,' etc. The defendant contends that the bond, being valid only as a common-law bond, did not dissolve the attachment, and that further action should have been had against the trustee. But the plaintiff, by taking judgment against the defendant alone, discontinued as against the trustee, and waived all right to pursue him further. Jarvis v. Mitchell, 99 Mass. 530. See, also, Davis v. Ferguson, 148 Mass. 603, 20 N.E. 311. The trustee was thereby discharged, and the fact that he was afterwards defaulted for not appearing was clearly an error of the clerk, which cannot affect the validity of the judgment recovered against the defendant in that action.

It further appeared that in the original action the defendant Fiske, on November 15, 1893, filed a suggestion of insolvency, with a motion for a continuance to await the result of the insolvency proceedings. The plaintiff put the case upon the trial list of civil cases for November 29, 1893, and gave the defendant the required notice thereof. On the day last mentioned, the defendant failed to appear, and was defaulted. Damages were assessed by the court, and on December 1, 1893, the clerk, under the general rule of that court, entered judgment for the plaintiff for a certain sum,--being the damages assessed and costs,--and four days later issued execution, which has not been satisfied. The defendant asked the judge in the present action to rule that the alleged judgment was irregular and invalid, because no valid judgment could be entered until the defendant's motion for continuance to await the result of the insolvency proceedings was passed upon, or in some way disposed of. The judge refused so to rule, and the defendant excepted. It is obvious that the attack is really upon the default ordered by the judge, and not upon the judgment, except so far as this is incidentally involved in the regularity of the default. The police court of Newton was established by St. 1876, c. 195, and is one of the courts mentioned in Pub. St. c. 154, § 1. By section 11, 'police and district courts may in their respective counties exercise the same powers, shall have the same jurisdiction civil and criminal, and shall perform the same duties and be subject to the same liabilities as trial justices.' Section 12 provides: 'They shall have and exercise the powers necessary and proper for the discharge of their duties; and the proceedings in the hearing, trial, determination of cases, and all matters relating thereto, shall be substantially the same as in like cases before trial justices, unless otherwise expressly provided.' Pub. St. c. 155, relates to trial justices, and it is provided by section 22: 'If a person duly served with process fails to appear and answer thereto, his default shall be recorded and the charge in the declaration taken to be true. Upon such default, or when the plaintiff maintains his action upon a trial, the trial justice shall award and enter judgment for such sum, not exceeding the amount of his jurisdiction in the case, as he upon inquiry finds the plaintiff is entitled to recover with costs.' The laws relating to district and police courts were revised and consolidated by the Statutes of 1893 (chapter 396), which was in force when the default was entered in this case. Section 19 contains the same language in regard to defaults as that above cited. This form of language applies to a case where a defendant has once appeared as well as to a case where he never appears. Jarvis v. Blanchard, 6 Mass. 4. See, also, Willey v. Durgin, 118 Mass. 64, 69, in which case it is said by Chief Justice Gray: 'It is within the discretion of every court, as incident to arrangement and regulation of its business, at such times as it may appoint, to call the docket of actions which have been entered and have not reached final judgment, and to default any party who fails to appear when called, even if an appearance has been previously entered in his behalf. Jarvis v. Blanchard, 6 Mass. 4; Randolph v. Barrett, 16 Pet. 138, 10 L.Ed. 914.' There certainly can be no doubt that it is within the power of a police court to order a default, where, as in this case, the case was set down for a hearing, and notice given to the defendant, who did not appear.

The defendant in the case before us contends that a judgment could not be entered, because there was a suggestion of insolvency, and a motion for a continuance pending....