Finance Corp.. of New England, Inc. v. Parker

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: 251 Mass. 372,146 N.E. 696
• Parties: FINANCE CORPORATION OF NEW ENGLAND, Inc., v. PARKER et al. (two cases.)
• Decision Date: 26 February 1925

251 Mass. 372
146 N.E. 696

FINANCE CORPORATION OF NEW ENGLAND, Inc.,
v.
PARKER et al. (two cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 26, 1925.

Exceptions and Appeal from Superior Court, Suffolk County; Marcus Morton, Judge.

Action of contract by the Finance Corporation of New England, Inc., against Charles H. Parker, executor, and another, to recover from defendants as indorsers of note. From order sustaining plea in abatement of defendant Parker, plaintiff excepts and appeals, and from verdict for plaintiff against defendant Albert D. Sherman, latter excepts. Exceptions overruled, and judgment entered on verdict.

[251 Mass. 374]

[146 N.E. 697]

G. S. Ryan, of Boston, for plaintiff.

C. F. Eldredge, of Boston, for defendants.

WAIT, J.

This is an action upon a promissory note, brought by the payee against two of nine indorsers, all of whom signed the note before delivery for the accommodation of the maker. The name of the defendant Mrs. Parker preceded that of Sherman upon the note. No security for the payment other than the indorsements was received by the payee. On February 6, 1922, the plaintiff brought an action against Mrs. Parker and Mr. Sherman and, on the writ, attached real estate of considerable value belonging to Mrs. Parker. The defendants duly appeared and made answer. Mrs. Parker died November 27, 1922; and on February 11, 1924, the attorney who had appeared and answered for her in March of 1922, filed a suggestion of her death and of the appointment on January 11, 1923, of Charles H. Parker as her executor. The next day the plaintiff filed a motion which recited the death and appointment, and which prayed order to compel the executor to appear and defend. The motion did not set out any dates on which the executor gave bond and filed notice of his qualification. The court on the same day, February 12, 1924, ordered notice to issue returnable March 3, 1924. The executor gave bond on January 11, gave notice of his appointment on January 24, and filed affidavit of notice on January 29, 1923; all more than one year before the issue of the order of notice or citation to appear and defend. On March 13, 1924, the attorney who had filed the suggestion of death, filed an appearance for Charles H. Parker, executor. On March 17, another attorney filed a special appearance for the executor, and both attorneys joined in filing a motion by the executor [251 Mass. 375]to dismiss the citation to appear and defend on the ground that more than a year having elapsed after the giving bond by the executor and before the issue of the citation, the issue was improper and beyond the jurisdiction of the court. At the same time they filed a plea in abatement which set out the same facts in regard to the death of Mrs. Parker, and the appointment, qualification, giving of bond, etc., of the executor; alleged that the summons or citation was granted more than a year after his qualification and prayed that citation and summons be vacated and the executor be hence discharged with costs.

Both motion to dismiss and plea in abatement recited that the executor appeared specially.

The executor also on March 19, 1924, by both attorneys, filed an answer which disclosed that he did not waive but insisted upon his motion to dismiss and plea in abatement, and which pleaded the same facts in defense, together with the short statute of limitations, G. L. c. 197, § 9, and G. L. c. 228, §§ 4-7, and other matters to the merits.

[1] The motion to dismiss and the plea in abatement were heard together on March 24, 1924, evidence being introduced; and the judge after consideration, on March 25, sustained the plea in abatement. He also indorsed ‘allowed’ on the motion to dismiss. The plaintiff appealed from these rulings and orders, and excepted thereto as well. He contends that the defenses set upon in the plea and the motion to dismiss are waived by the general appearance filed March 13, and are no longer open.

There would have been more force in this contention before the enactment of St. 1917, c. 101.

The occasion for the entry of an appearance in an action at law in the Superior Court, apart and distinct from a pleading in the action, arose from the statutory requirement that a default should be entered by the clerk against any defendant who did not, within a specified number of days after the return day named in the precept summoning him into court, appear in answer to the precept. This period for many years was ten days. St. 1852, c. 312, § 10; St. 1870, c. 68; P. S. c. 167, § 47; R. L. c. 173, § 54. The rules [251 Mass. 376]of the court made no...