Fogarty v. Connell

• Decision Date: 28 February 1891
• Citation: Fogarty v. Connell, 153 Mass. 369, 26 N.E. 880 (Mass. 1891)
• Parties: FOGARTY v. CONNELL.
• Court: Supreme Judicial Court of Massachusetts

153 Mass. 369

26 N.E. 880

FOGARTY v. CONNELL.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1891

COUNSEL

J.H. Flint, for plaintiff.

Paul R Blackmur, for defendant.

OPINION

FIELD C.J.

It is difficult to deal intelligently with this appeal, because apparently the record is not complete. The defendant was defaulted, and a motion to take off the default was overruled, but whether, except for the purpose making this motion, the defendant did or did not appear generally in the superior court after the supplemental complaint was filed, is not shown by the record before us. If he did appear generally in that court, he probably waived all objections to the record sent up by the district court. Davis v McEnaney, 150 Mass. 451, 23 N.E. 221. If it be assumed that the questions of law which the defendant raised in his motion in arrest of judgment can be brought to this court by appeal, and that the defendant has not waived them by an appearance in the superior court, we are of opinion that the motion was rightly overruled. The record sent up from the district court was attested by the clerk of that court at the end, and this is sufficient. Com. v. Wait, 131 Mass. 417; Com. v. Barry, 115 Mass. 146; Com. v. Ford, 14 Gray, 399. We assume that when, after due hearing, the accused is required to give bond to appear and answer to the complaint at the next term of the superior court, pursuant to Pub.St. c. 85, § 9, the same papers may be transmitted to the superior court as are required by section 7 of the same chapter. Kennedy v Shea, 110 Mass. 152; Biggane v. Ross, 126 Mass. 233. But we think that the words, "Record attest, J. WHITE BELCHER, Clerk," affixed to the papers transmitted to the superior court, import that the papers are a copy of the record in the district court, including the complaint and the warrant. The judgment of the district court substantially follows the words of the statute, (Pub.St. c. 85, § 9,) and it is not necessary that it should appear therein "that there was good, sufficient, or probable cause" to believe the defendant guilty as alleged in the complaint. The justice of the district court had authority to receive the complaint and issue the warrant when the court was not in session, and it is to be presumed that the court was not in session when this complaint was received and the warrant was issued. Pub.St. c. 154, § 22; Sabins v. Jones, 119 Mass. 167. If the...