Henderson v. Parsons

• Decision Date: 27 February 1912
• Citation: 97 N.E. 613,211 Mass. 69
• Parties: HENDERSON et al. v. PARSONS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

211 Mass. 69

97 N.E. 613

HENDERSON et al. v. PARSONS et al.

Supreme Judicial Court of Massachusetts, Essex.

February 27, 1912

COUNSEL

C. A. Russell and G. F. Merrill, for plaintiffs.

H. B. Knowles and H. H. Smith, for defendants.

OPINION

BRALEY, J.

By the terms of the recognizance given by the defendants, the judgment debtor, if he desired to take the oath for the relief of poor debtors, became bound within 30 days from the date of his arrest to deliver himself up for examination before a court or magistrate qualified to act, and to give notice to the plaintiffs of the time and place fixed for the hearing. Rev. Laws, c. 168, §§ 30, 33. It is not a sufficient compliance with the conditions that the debtor's application should be seasonably made, but the notice must be issued before the expiration of the 30 days, even if the return day may be beyond the period. Barnes v. Ladd, 130 Mass. 557; Marple v. Burton, 144 Mass. 79, 10 N.E. 467; Ryder v. Ouellette, 194 Mass. 24, 79 N.E. 820. The court to which the debtor applied before the time expired concededly had jurisdiction, and the clerk should have issued the proper order of notice as directed by the standing justice and requested by counsel. Rev. Laws, c. 168, §§ 33, 73, St. 1910, c. 84. But through the clerk's delay, the notice did not actually issue, nor was it served, until more than 30 days had elapsed from the date of arrest. The attention of the court having been called to the irregularity, the clerk was directed to make the date on the docket record when the notice issued correspond with the date of the application, but, on motion of the plaintiffs, the record subsequently was further amended by making the entry conform to the true date. It thus appears from the final record, which is to be taken as a true transcript of the proceedings, that the notice and service were invalid, and, it being too late to give a new notice, the condition of the recognizance was broken. The execution having been superseded by the recognizance, the subsequent examination of the debtor, and refusal of the oath, were not within the jurisdiction of the court, and under the terms of the report the plaintiffs are entitled to judgment for the amount found by the presiding judge. Morgan v. Curley, 142 Mass. 107, 7 N.E. 726; Bliss v. Kershaw, 180 Mass. 103, 61 N.E. 823.

So ordered.