McKeon v. Briggs
| Decision Date | 21 May 1919 |
| Citation | 123 N.E. 387,233 Mass. 99 |
| Parties | McKEON v. BRIGGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Henry A. King, Judge.
Action by Patrick McKeon against Frederick L. Briggs. There was a finding for plaintiff, and defendant excepts. Exception sustained, and judgment ordered entered for defendant.
E. M. Shanley, of Boston, for plaintiff.
Clarence F. Eldredge, of Boston, for defendant.
This is an action against the surety on a poor debtor recognizance. The breach relied on is that the debtor did not deliver himself up for examination within 30 days from the day of his arrest.
The debtor, one George W. Choate, was arrested on an excution on January 9, 1917, and entered into a recognizance under R. L. c. 168, § 30. There was evidence that on February 6, 1917, he appeared with his surety in the poor debtor's session of the municipal court of the city of Boston, delivered himself up for examination, and made application to take the oath for the relief of poor debtors. An order of notice issued thereon to the judgment creditor, returnable February 27, 1917, at 9 o'clock in the forenoon. The notice required the judgment creditor to ‘pay to the clerk the fee of $3 for these proceedings forthwith.’
The record of the court was introduced in evidence and contained the following recital:
[1] The plaintiff offered in evidence, subject to the exception of the defendant, a written application to take the oath, signed ‘Harold Caverly on Behalf of George W. Choate.’ It was no part of the record in the case, and should have been excluded; the exception to its admission must be sustained.
[2] The record of the court correctly construed shows that the debtor on February 6, 1917, delivered himself up for examination in accordance with the statute (R. L. c. 168, § 30), and gave notice of his desire to take the oath for the relief of poor debtors. That the record cannot be contradicted or controlled by extrinsic evidence, but is conclusive and binding upon the parties, is well settled. Niles v. Silverman , 216 Mass. 242, 103 N. E. 476;Haskell v. Cunningham, 221 Mass. 49, 53, 108 N. E. 915.
It was decided in Howard v. Roach, 226 Mass. 80, 115 N. E. 289, that when the application is made the debtor must appear personally, not merely by attorney, within 30 days of his arrest, in order to comply with the condition of the recognizance; in that case counsel for the debtor appeared and made application to take the oath in the absence of the debtor, while in the case at bar the debtor himself appeared in court and personally made the application. As the evidence that the debtor was present in court on February 6 was conclusively established by the record, the testimony of the plaintiff to the effect that the debtor told him he had never been in the poor debtor session before March 20, was inadmissible, and the exception thereto must be sustained.
According to the docket entries, the notice was served on the creditor's attorney on February 9, 1917, the fee was paid by the creditor on February 26, 1917, on February 27, 1917, at the time and place fixed, the creditor's attorney and the debtor appeared, and the hearing was continued by order of the court to March 20, 1917, at 9 o'clock in the forenoon. The court record also contains the following recital:
[3] The undisputed evidence shows that the creditor and his counsel and the debtor and his counsel were present in the poor debtor's court on February 27, 1917. The plaintiff testified as follows:
The burden was on the plaintiff to show that there had been a breach of the recognizance, under which the debtor agreed to deliver himself up for examination within 30 days from the date of his arrest and abide the order of the court.
[4] If the oral evidence to show that the debtor was present in court on that day was not believed by...
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Little v. Mathews
... ... G. L. (Ter. Ed.) c. 224, Section ... 14. Howard v. Roach, 226 Mass. 80 ... Sturman v ... McCarthy, 232 Mass. 44 ... McKeon v. Briggs, 233 ... Mass. 99 ... National Surety Co. v. Reed, 262 Mass ... 372 , 375. Modern Finance Co. v. Martin, 311 Mass ... 509 ... And since ... ...
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Little v. Mathews
...G.L.(Ter.Ed.) c. 224, § 14; Howard v. Roach, 226 Mass. 80, 115 N.E. 289;Sturman v. McCarthy, 232 Mass. 44, 121 N.E. 522;McKeon v. Briggs, 233 Mass. 99, 123 N.E. 387;National Surety Co. v. Reed, 262 Mass. 372, 375, 160 N.E. 281;Modern Finance Co. v. Martin, 311 Mass. 509, 42 N.E.2d 533. And ......
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Modern Finance Co. v. Martin
...if the latter is at hand and is readily accessible for the transaction of such business as may be presented to him. See McKeon v. Briggs, 233 Mass. 99, 123 N.E. 387. The circumstances of the McKeon case, from which this request was evidently taken, were very different from those in the case......
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Modern Finance Co. v. Martin
...accessible for the transaction of such business as may be presented to him. (See McKeon v. Briggs, 233 Mass. 99 .) The circumstances of the McKeon case, from which this request was evidently taken, were different from those in the case at bar and the request was inapplicable to the evidence......