Norcross v. Crabtree

• Decision Date: 05 March 1894
• Citation: 36 N.E. 678,161 Mass. 55
• Parties: NORCROSS v. CRABTREE et al., (four cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 55

36 N.E. 678

NORCROSS v. CRABTREE et al., (four cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1894

COUNSEL

Chas H. Sprague, for plaintiff.

Edwin C. Gilman, for defendants.

OPINION

FIELD C.J.

The first case is a writ of scire facias against the bail of Arthur E. Miller and Fred Miller. The second case is a writ of scire facias against the bail of Arthur E. Miller. The third is the same as the first, and the fourth is the same as the second, but a different question of law is raised in the third and fourth cases from that raised in the first and second. Arthur E. Miller and Fred Miller were both arrested in a suit against them, and they gave bail, the defendants being their sureties. Arthur E. Miller was also arrested in another suit, which was against him alone, and he gave bail the defendants being his sureties. The plaintiff obtained judgment in these two suits and, the judgments being unsatisfied, he brought these writs of scire facias. The first two of the cases before us are appeals by the defendants from a judgment of the superior court disallowing a motion made by them that their default might be taken off, etc. The last two of the cases before us are appeals by the plaintiff from the judgment of the superior court dismissing the actions and discharging the bail. If the judgments appealed from in the last two cases are affirmed, it will be unnecessary to consider the appeals in the first two cases. In each case, all the proceedings were substantially the same, and in each the bail surrendered their principal in the court where the writ of scire facias was pending, on August 1, 1893, at 10 o'clock in the forenoon, and they paid the plaintiff the costs of court up to that time. Pub.St. c. 163, § 12, provides that bail may so surrender their principal "at any time before final judgment," and may be discharged; and the question of law, in these cases, is whether the surrender was before final judgment. The writs of scire facias were returnable on the first Monday of April, 1893; and, no appearance having been entered for the defendants within 10 days from the return day, their default was recorded. On April 25th they filed a motion in writing that the default might be taken off, and that they might have leave to enter an appearance. On May 4th they also filed a motion that the default might be taken off; that they might be allowed to enter an appearance and file an answer in the case, and might have a reasonable time to file an affidavit of defense, if required by the court. On May 18th the motion to take off the default was disallowed, and the defendants appealed to this court, and the appeal was duly entered here. After surrender on August 1, 1893, viz. on August 7th, a motion was made that the bail be discharged, which was granted, and from this the plaintiff appealed to this court.

Rule...