Hanzes v. Flavio

Decision Date08 January 1920
PartiesHANZES et al. v. FLAVIO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Supreme Judicial Court, Suffolk County.

Action by Emilio Flavio, by next friend, against Nicholas Kaleavas and others, wherein, plaintiff having died, Carmine Flavio, his administrator, was substituted as plaintiff, and Louis Hanzes, administrator of Nicholas Kaleavas, was substituted in place of such defendant, deceased. To review a superior court judgment for plaintiff, the defendants petitioned for writ of error. After hearing before a single justice, case reported for the full court. Judgment reversed, and mandate to issue accordingly.

Harold S. Davis, of Boston, for plaintiff.

Harry E. Burroughs and Harry Bergson, both of Boston, for defendants.

RUGG, C. J.

This is a writ of error to reverse a judgment entered in the superior court on April 21, 1914, in favor of the administrator of the estate of Emilio Flavio against four persons named therein as defendants. The grounds of error alleged are (1) that the superior court acquired no jurisdiction over the defendants Contakis and Kaleavas, and (2) that Kaleavas died August 6, 1913, and his administrator never appeared voluntarily and was not summoned in to defend the action. The case was sent to an auditor,whose general finding was in favor of the plaintiffs on the grounds alleged. The case was then heard by a single justice of this court upon the pleadings and the auditor's report. No motion was made at any time to recommit the auditor's report, and no ruling was requested or exception taken as to its form. The only evidence submitted was the auditor's report.

1. The proceedings upon a writ of error are according to the common law except as modified by usage. Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623. Therefore only questions of law are presented on this record. Review of questions of fact is not open.

2. There was no error in the finding that the superior court acquired no jurisdiction over Contakis or Kaleavas. This was the finding of the auditor, who saw and heard the witnesses. The crucial point in this connection was whether a partnership previously existing between the four persons named as defendants in the original action, known as the Vassara Fruit Company, had been dissolved before the commission of the tort on which the original action was founded and whether Contakis and Kaleavas then had retired from it and had ceased to be members of the Vassara Fruit Company. That was a pure question of fact. It is not necessary to narrate the evidence. It is enough to say that it was conflicting and would have warranted a finding either way, depending upon the degree of credence given to the testimony of the several witnesses and the inferences to be drawn therefrom and from all the circumstances. It cannot be said that any error of law was made in reaching the decision that the partnership had been dissolved and that Contakis and Kaleavas had retired.

[3] 3. If the partnership had been dissolved before the wrong complained of, the attorney who appeared for the four defendants had no authority to accept service of process and appear for Contakis and Kaleavas, or at all events might have been found to have had no such authority. Such finding has been made. A court acquires no jurisdiction over a defendant where an attorney without authority accepts service of process and enters appearance for him in court. Shelton v. Tiffin, 6 How. 163, 12 L. Ed. 387;Hatfield v. King, 184 U. S. 162, 22 Sup. Ct. 477, 46 L. Ed. 481.

4. There is nothing in the contention that the appearance of Maurice Bushman was general and unquestioned for all the defendants. It was not general for all the defendants, but was limited by terms to another defendant named Anastos. Moreover, the validity of service depends upon the authority of Milne, the other attorney.

5. The fact that a certificate under St. 1907, c. 539, was filed in the city clerk's office of Boston on March 28, 1910, stating that Contakis and Kaleavas, together with the other two original defendants, constituted a partnership under the name of the Vassara Fruit Company, did not estop Contakis and Kaleavas from asserting that they withdrew before December, 1912, when service of the writ was accepted by Milne. Crompton v. Williams, 216 Mass. 184, 187, 103 N. E. 298. There is nothing to indicate that the original plaintiff ever heard of the certificate or relied upon it in any way.

6. There is strong ground for inference that such acceptance of service of process and appearance, if originally unauthorized, was subsequently ratified. But that, too, was a pure question of fact, and there was no error of law in reaching the opposite conclusion.

7. The single justice ruled that certain evidence tending to show the death of Kaleavas, to which exception was noted in the auditor's report,...

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    ...errors of fact, Buessel v. United States, 2 Cir., 258 F. 811; Nashville Ry. & Light Co. v. Bunn, 6 Cir., 168 F. 862;Hanzes v. Flavio, 234 Mass. 320, 125 N.E. 612;Wingfield v. Neall, 60 W.Va. 106, 54 S.E. 47, 10 L.R.A.,N.S., 443, 116 Am.St.Rep. 882,9 Ann.Cas. 982; and it is not used for the ......
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