Keown v. Hughes
| Decision Date | 17 April 1919 |
| Citation | 233 Mass. 1,123 N.E. 98 |
| Parties | KEOWN v. HUGHES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal and Exceptions from Superior Court, Suffolk County; Charles F. Jenney, Judge.
Action of contract by James A. Keown against James Joseph Hughes and trustee. From a judgment of nonsuit, from refusal of the trial court to allow evidence to be introduced in regard to the nonsuit, and from refusal to remove the nonsuit and rule plaintiff was not requested to furnish any evidence, plaintiff appeals and excepts. Appeals dismissed, and exceptions overruled.
See, also, 121 N. E. 153.
James A. Keown, of Lynn, in pro. per.
On July 5, 1918, the defendant made a motion that the plaintiff in the above-entitled cause, not being an inhabitant of the commonwealth, should be nonsuited because his writ had not been indorsed for costs in compliance with R. L. c. 173, § 39. The motion was made more than a year after the date of the writ. It was alleged in the motion that the fact that the plaintiff was not an inhabitant was a fact not disclosed on the face of the pleadings and that it was a fact which ‘only recently’ had come to the knowledge of the defendant. A hearing was had on this motion on July 9, 1918, at which evidence on the issues involved was introduced. The judge reserved his decision. On July 12 the motion was allowed ‘in the absence of the plaintiff.’ To the ruling allowing the motion the plaintiff took an exception. That is the only exception stated in the first bill of exceptions now before us.
It is stated in the second bill of the exceptions that the order made on July 12 was that the plaintiff be ordered ‘to furnish an indorser for costs within ten days without specifying the amount that the indorser should be responsible for.’ No indorser was furnished within the ten days. Thereafter on July 23, 1918, the defendant made a motion that the plaintiff be nonsuited ‘for failure to furnish an indorser for costs.’ It is stated in this bill of exceptions that--
It is stated further in this bill of exceptions that on August 14, 1918, the plaintiff filed a motion to remove--
Neither Exhibit A nor the substance of it is set forth in the bill of exceptions. On August 20, 1918, this motion was denied and an exception was taken. That is the first exception set forth in the second bill of exceptions.
The second exception set forth in this bill of exceptions is set forth in these words:
‘The judge rendered no decision at the time but subsequently denied the motion to remove the nonsuit, and also refused to grant the plaintiff's oral motion to introduce evidence and having the evidence reported to the Suprme Judicial Court is ruled upon the evidence to which the plaintiff then and there duly objected and excepted.’
We find no error in the matters covered by the exceptions set forth in these bills of exceptions.
Taking up the arguments made by the plaintiff in the order in which they are made on his brief:
1. It is true that under ordinary circumstances the failure of a nonresident to furnish an indorser for costs is taken to have been waived if the objection is not made at the first term of court. That was decided in Whiting v. Hollister, 2 Mass. 101,Gilbert and another v. President et al. of Bank, 5 Mass. 97, and Carpenter v. Aldrich, 3 Metc. 58, relied upon by the plaintiff, but where the fact that the plaintiff is not an inhabitant is not disclosed on the pleadings and is not known to the defendants this rule does not apply.
2. There is...
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Pigg v. Brockman
...1, § 18. In Massachusetts a statute requiring a non-resident to furnish and endorser for costs was held constitutional. Keown v. Hughes, 233 Mass. 1, 123 N.E. 98. In Harbison v. George, 228 Ky. 168, 14 S.W.2d 405, a Kentucky statute requiring the clerk of the court to collect $5 from the pl......
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Kreitzer v. Puerto Rico Cars, Inc.
...right to travel. See Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957); Ex Parte Louisville, 124 Ala. 547, 27 So. 239; Keown v. Hughes, 233 Mass. 1, 123 N.E. 98. Other cases upholding reasonable requirements for an advance of, or security for, costs, fees or other expenses, as a condition......
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Cressey v. Erie R. Co.
...of there furnishing an endorser for costs as a condition precedent to the bringing of his action. See G. L. c. 231, § 42; Keown v. Hughes, 233 Mass. 1, 5, 123 N. E. 98. The defendant urges that the public welfare ought not to suffer because it will be hindered in its operation and hampered ......
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Forbes v. Allen
...rights the defendants may have had under that statute, if any, had been waived by failure seasonably to assert them. Keown v. Hughes, 233 Mass. 1, 4, 123 N. E. 98, and cases collected. Motion to dismiss denied. Exceptions ...