Niles v. Silverman

• Decision Date: 15 December 1913
• Citation: 103 N.E. 476,216 Mass. 242
• Parties: NILES v. SILVERMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 242

103 N.E. 476

NILES v. SILVERMAN et al.

Supreme Judicial Court of Massachusetts, Essex.

December 15, 1913

COUNSEL

W. Scott Peters, Harry J. Cole, and Frederick H. Tilton, all of Haverhill, for plaintiff.

Edward McAnally and Chas. A. Clifford, both of Lawrence, for defendants.

OPINION

DE COURCY, J.

One William J. Lena was arrested on an execution in favor of the plaintiff, and entered into the recognizance provided by R L. c. 168, § 30, with the defendants as sureties. At the request of the principal, Lena, the police court of Lawrence issued a notice of his desire to take the oath for the relief of poor debtors, which notice was duly served upon the plaintiff and was returnable on the 15th day of October 1909, at 10 o'clock a. m.

This is an action upon the recognizance. At the trial in the superior court the plaintiff introduced in evidence the record of the police court of Lawrence of which the part material to the issue before us is as follows: 'October 15th, 1909. The debtor and creditor with their counsel were both present in the court room during the hour beginning with 10 o'clock a. m. The case was informally called to the attention of the presiding judge about 10 o'clock. The court was then engaged in the trial of other causes and made no formal order at that time. The case was reached by the presiding judge of the court at about 11:20 a. m., when the judgment debtor brought the matter to the attention of the court; all parties being present. The attorney for the creditor then entered a special appearance for the purpose of objecting to the jurisdiction of the court, on the ground that no action had been taken in the case during the hour following 10 o'clock a. m. The court overruled his objection and ordered the cause to be continued until January 1st, 1910, at 10 o'clock a. m. Neither the judgment creditor nor her attorney took any part in the proceedings after his objection to the jurisdiction had been overruled. The continuance was ordered by the court at the request of the debtor, it appearing that the debtor had filed a petition in bankruptcy.'

The burden was on the plaintiff to prove that there had been a breach of the recognizance. As constituting such breach she relied solely on the debtor's failure to have the police court take any action on his application to take the poor debtor's oath within one hour after 10 o'clock a. m the hour when the notice was returnable, and she contended that the court had no jurisdiction, after the expiration of that hour, to make any order in the case.

It has long been settled that in these poor debtor proceedings the duty is on the debtor to see that a competent magistrate attends at the time and place fixed for his examination; and one hour is allowed for the appearance of both parties after the time mentioned in the notice. If during that hour the magistrate fails to appear, his jurisdiction to act upon the notice is exhausted. Hills v. Jones, 122 Mass. 412; Bliss v. Kershaw, 180 Mass. 101, 61 N.E. 823. To protect from default the debtor who is not responsible for the absence of the judge the statute permits him to call in another magistrate under R. L. c. 168, § 69, or to issue a new notice to the creditor under section 70. But clearly these provisions are not applicable where the debtor has present, during the time appointed, a magistrate who is competent to act.

In the case at bar the police court acquired jurisdiction of the debtor's application. At the beginning...