Merrill v. Kaulback

• Decision Date: 03 March 1893
• Citation: 158 Mass. 328,33 N.E. 515
• Parties: MERRILL v. KAULBACK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 328

33 N.E. 515

MERRILL v. KAULBACK.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1893

John P. Jackson was arrested on an execution issued on a judgment in favor of Merrill, the plaintiff herein, and entered into a recognizance, with Kaulback, defendant, as surety, to appear within 30 days, anddeliver himself up for examination before some authorized magistrate giving due notice of the time and place of such examination to the judgment creditor, as provided in chapter 162 of the Public Statutes, and acts amendatory thereof, and appear at the time and place fixed for his examination, etc. Within the time Jackson appeared before a justice of the proper district court, who fixed a time for his examination, and a notice was issued, returnable on a day therein named, which was supposed by the debtor at the time to be on Monday, but which, on that day, was discovered to be the Sunday previous. This notice of the time and place fixed by the justice for such examination was duly served on the debtor, but none of the parties appeared at that time. On Monday the justice fixed another date for the examination, and ruled that the notice given was invalid, because by inadvertence the return day fixed therein was Sunday. A new notice was thereupon issued and duly served on the creditor, in accordance with the time last fixed for such examination. At the time thus fixed the debtor appeared and, the creditor's attorney appearing, specially filed objection to further proceedings in the case. The matter was continued from time to time, when, the creditor not appearing at the time last set for the examination, the debtor Jackson, was discharged. After this, action was brought on the recognizance to recover for a breach, because the debtor failed to appear for examination at the time fixed in the first notice, on Sunday; and more than a year after the former proceeding the record in such proceeding was corrected on motion of the debtor, so as to show that the time first fixed by the court was on Monday, and that the court ruled that the notice was invalid because the return day was not in accordance with the time appointed by the court. Plaintiff objected to the correction of the record.

COUNSEL

John W. Low, for appellant.

William E. Rogers, for appellee.

OPINION

KNOWLTON J.

The judgment debtor delivered himself up for examination before the court in compliance with the requirements of his recognizance, and the question in dispute is whether there was a breach of the recognizance in his failure to appear before the court on Sunday, and have the case continued, or in the issuing of a new notice on the next Monday, and the subsequent proceedings. The court had...