Finance Corp. of New England v. Parker
| Decision Date | 25 February 1925 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | FINANCE CORPORATION OF NEW ENGLAND v. CHARLES H. PARKER, executor, & another. |
November 21, 1924.
Present: BRALEY PIERCE, CARROLL, & WAIT, JJ.
Practice, Civil Parties, Appearance, Motion to dismiss, Waiver of defence Appeal. Death. Executor and Administrator. Limitations Statute of. Bills and Notes, Consideration, Accommodation indorser.
In an action begun in February, 1922, against two defendants, a suggestion of the death in November, 1922, of one of the defendants was filed in
February, 1924, and by order of the court, on motion by the plaintiff, the executor of the will of that defendant was summoned to appear and defend. Ten days after the return day of the notice, a general appearance was entered in behalf of the executor. Four days later, a second attorney filed a special appearance and both attorneys filed a motion to dismiss the action as to the executor and a plea in abatement to the process on the ground that the executor had been appointed and had given bond and statutory notice more than one year before he was summoned to appear. The plea was sustained and the motion was allowed.
The plaintiff alleged exceptions and filed a single appeal covering the action on both the motion and the plea. Held, that
(1) Since St. 1917, c. 101, and Rule 7 of the Superior Court (1923), the general appearance filed before the passing of twenty days from the return day of the process was without significance and the executor had not thereby waived any right to rely on the plea in abatement;
(2) The executor had no right to waive the provisions of G.L.c. 197, Section 9; c. 228, Section 5;
(3) The order sustaining the plea was proper; (4) The motion to dismiss should have been denied since it must rely only upon matters apparent on the record, and the record did not disclose the date of the appointment and qualification of the executor;
(5) Since the subject matter of the motion to dismiss was adjudicated rightly on the plea in abatement, the single appeal from the court's ruling on both the motion and the plea should not be sustained;
(6) The exceptions must be overruled.
Exception to a single sentence in a charge to a jury will not be sustained where from the context it appears that the words could not mislead the jury.
The payee of an unsecured negotiable promissory note, indorsed by nine persons before delivery and for accommodation, brought an action against the sixth and the eighth indorsers only and made an attachment of real estate of the sixth. The sixth indorser then died and the executor of his will was not summoned into court until more than one year after he had given bond and notice of his appointment, so that the action, by order of the court, was dismissed as to him. No payment on the note had been made by any one. At the trial of the action against the remaining defendant, he contended that the plaintiff, by failure to have the executor summoned seasonably, had lost the power to pursue the real estate of that defendant and thus had released security to which the remaining defendant was entitled and had discharged him. Held, that
(1) When the action could no longer be prosecuted against the sixth indorser by reason of his death, the plaintiff was not bound by any duty to the remaining defendant to go on with the action against his estate;
(2) The loss of the attachment upon the real estate of the deceased defendant was not the negligent loss of any security which the remaining defendant was then entitled to have preserved for his benefit by the plaintiff.
CONTRACT, originally against Mary A. Parker and A.D. Sherman upon a promissory note for $25,000, dated October 25, 1919, payable to the plaintiff, signed by Suffield-Berlin Trap Rock Company, and indorsed "Waiving demand and notice" by nine persons, of whom the defendant Mary A. Parker was the sixth and the defendant Sherman was the eighth. Writ dated February 6, 1922.
Proceedings following the death of the defendant Mary A. Parker are described in the opinion. The motion for process against the executor of her will was allowed by Cox, J. The motion to dismiss the action as to that executor was allowed by Morton, J., who also sustained the executor's plea in abatement.
The action was tried against the defendant Sherman before Dubuque, J. Material facts at the hearings and evidence at the trial are described in the opinion. There was a verdict for the plaintiff against the defendant Sherman in the sum of $30,241.50.
The plaintiff alleged exceptions to the rulings upon the motion to dismiss and the plea in abatement, and filed a single appeal "from the rulings and order . . . in sustaining the plea in abatement of defendant Charles H. Parker and in allowing the said defendant's motion to dismiss citation issued to him."
The defendant Sherman alleged the exceptions described in the opinion to rulings at the trial of the action against him.
G.S. Ryan, for the plaintiff. C.F. Eldredge, for the defendant Parker, executor.
A.S. Kneil, for the defendant Sherman, submitted a brief.
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 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 had given bond on January 11, 1923, and on the twenty-fourth and twenty-ninth of that month had given notice of his appointment and had filed affidavit of notice, 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 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 defence, together with the short statute of limitations, G.L.c. 197, Section 9, and G.L.c. 228, Sections 4-7, and other matters to the merits.
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 defences set up 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, Section 10; St. 1870, c. 68; Pub Sts. c. 167, Section 47; R.L.c. 173, Section 54. The rules of the court made no provision fixing the time of appearance for a defendant, at law, but they did require that demurrers, pleas in abatement and motions to dismiss should be filed within the time allowed for appearance, and they allowed a longer time for filing answers to the merits. Consequently, a party who wished to delay answering until the end of the full time allowed by the rules, in order to avoid being defaulted before the time for answer had expired, was compelled to enter an appearance...
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