MaLey v. Moshier

• Decision Date: 09 January 1894
• Parties: MALEY v. MOSHIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 415

36 N.E. 64

MALEY v. MOSHIER.

Supreme Judicial Court of Massachusetts, Worcester.

January 9, 1894

COUNSEL

Sheehan & Cutting, for appellant.

John E Sullivan and David F. O'Connell, for appellee.

OPINION

FIELD C.J.

This is an appeal from an order of the superior court overruling a motion made by the plaintiff that the action be dismissed from the superior court for want of jurisdiction. It appears that the action was originally brought in the central district court of Worcester, in which the plaintiff recovered judgment for five dollars damages and the costs of suit, from which the plaintiff claimed an appeal to the superior court. A trial was had in the superior court, and the jury found for the defendant. After the verdict the plaintiff filed the motion to dismiss the action. It does not appear that any judgment has been entered on the finding of the jury, but there is apparently no reason why such judgment should not be entered if the motion to dismiss was properly overruled. Under these circumstances, we think that the appeal is properly before us. Com. v. Dunleay, 157 Mass. 386 32 N.E. 356; Com. v. McCormack, 126 Mass. 258.

The ground of the motion to dismiss is that the plaintiff failed to furnish a bond with surety or sureties, as required by chapter 95 of the Acts of 1882, and section 52 of chapter 154 of the Public Statutes. The record of the district court recites that the plaintiff "deposits the sum of two hundred dollars to prosecute her said appeal with effect," etc. The date of the writ is May 24, 1892, and the appeal was taken in July, 1892. St.1893, c. 396, § 26, therefore, has no application, because it was passed long after the appeal. The plaintiff seems to have followed the law at the time in force concerning appeals from the judgment of a trial justice. See Pub.St. c. 155, § 30,^[1]which, by chapter 154, § 39, was made applicable to appeals from the judgment of a police or district court. It has been held that the effect of St.1882, c. 95, was that in police and district courts, as well as in municipal courts, the party appealing must file a bond with surety or sureties, instead of entering into a recognizance. Santom v. Ballard, 133 Mass. 464; Henderson v. Benson, 141 Mass. 218, 5 N.E. 314. But it has not been decided that the provision for making a deposit in appeals from trial justices and police and district courts was repealed by that statute.

Pub.St c. 154, § 52, is as follows: "In said municipal courts, instead of entering into a recognizance, the party appealing in civil proceedings shall file a bond," etc.; but nothing is said about making a deposit, or that a bond shall be given instead of making a deposit. St.1880, c. 20, § 1, authorized the making of a deposit, instead of entering into a recognizance or filing a bond, in appeals in civil actions from the judgment of a municipal, district, or police court or trial justice; and this right was retained in the Public Statutes, in the case of appeals in civil proceedings from the judgment of a police or district court, or of a trial...