Parker v. Rich
| Decision Date | 01 April 1937 |
| Citation | 297 Mass. 111,8 N.E.2d 345 |
| Parties | PARKER v. RICH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Action of contract by Herman W. Parker against Maurice E. Rich, administrator, wherein findings were for the plaintiff. From an adverse order of the Appellate Division, the administrator appeals.
Order of the Appellate Division reversed, and judgment ordered to be entered for the administrator.Appeal from Appellate Division, Suffolk County.
E. R. Greenhood, of Boston, for plaintiff.
C. S. Walkup, Jr., of Boston, for defendant.
This is an action of contract to recover charges for services rendered to the defendant's intestate with respect to the funeral of his wife. The case was submitted on these agreed facts: On December 21, 1934, the defendant was appointed administrator of the estate of the deceased and gave bond as required by law; on December 19, 1935, the writ in the present case was made out; on December 20, 1935, a notice was filed in the registry of probate under St. 1933, c. 221, § 4, setting forth the pendency of this action in the Municipal Court of the city of Boston and stating the name of the estate, the name and address of the plaintiff and the amount of the claim; the writ was not turned over to an officer for service but was entered in court on its return day, which was January 4, 1936. The defendant pleaded the short statute of limitations among the defences. The trial judge ruled that it was immaterial in a technical sense whether this action was actually commenced within one year after the approval of the bond of the administrator, found that the action was not barred by the statute of limitations, and found for the plaintiff. There appears to be no dispute as to the amount of the debt due the plaintiff, provided he is entitled to recover. The parties have filed in this court a stipulation to the effect that, as a result of a motion filed on February 6, 1936, an order of personal notice to the defendant issued out of the Municipal Court of the City of Boston, which was served in hand upon the defendant, and that the latter duly appeared and answered. The facts thus stipulated are confirmed by the docket entries.
The question to be decided is whether the defendant as administrator can avail himselfof the short statute of limitations. The pertinent words of St. 1933, c. 221, § 4, the governing statute applicable to the facts here disclosed, are these: ‘An executor or administrator shall not be held to answer to an action by a creditor of the deceased which is not commenced within one year from the time of his giving bond for the performance of his trust, or to such an action which is commenced but not entered within said year unless before the expiration thereof the writ in such action has been served by delivery in hand upon such executor or administrator or service thereof accepted by him or a notice stating the name of the estate, the name and address of the creditor, the amount of the claim and the court in which the action has been brought has been filed in the proper registry of probate.’
The Judicial Council in its sixth report, page 21, recommended the enactment of legislation to protect from personal responsibility executors and administrators who had made distribution of assets of estates in their hands ‘for the payment of claims of which they have had no notice, which have been kept alive by actions begun just before the end of the year but which are not returnable until after the assets of the estates have been distributed.’ Doubtless, as a result of this recommendation, St. 1931, c. 417, § 1, was enacted, which was superseded by St. 1933, c. 221, § 4, already quoted. The word ‘commenced,’ in this latter section, as applied to actions at law in connection with determining whether the statute of limitations is a bar, has acquired a fixed meaning. ...
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Hanna v. Plumer
... ... Parker v. Rich, 297 Mass. 111, 113—114, 8 N.E.2d 345, 347 (1937). Actual notice is of course also the goal of Rule 4(d)(1); however, the Federal Rule ... ...
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Marshall v. Mulrenin, 74-1253
... ... Richard L. Neumeier, Boston, Mass., with whom Philander S. Ratzkoff, Richard P. Melick, and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for defendants-appellees ... Before COFFIN, Chief Judge, ALDRICH and McENTEE, ... Parker v. Rich, 297 Mass. 111, 113-114, 8 N.E.2d 345, 347 (1937). Actual notice is of course also the goal of Rule 4(d)(1); however, the Federal Rule reflects a ... ...
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Hardy v. Green
... ... (5 Metc.) 94; Bunker v. Shed, 1844, 49 Mass. (8 Metc.) 150, 153; Rosenblatt v. Foley, 1925, 252 Mass. 188, 190, 147 N.E. 558; Parker v. Rich, 1937, 297 Mass. 111, 113, 8 N.E.2d 345; Gray v. Dahl, 1937, 297 Mass. 260, 262, 8 N.E.2d 919; B. M. C. Durfee Trust Co. v. Turner, 1938, 299 ... ...
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United States v. Saxe, Civ. A. 57-902-A.
... ... Eastman v. Allen, 308 Mass. 138, 31 N.E.2d 547. The filing of its claim was not commencement of suit. Parker v. Rich, 297 Mass. 111, 8 N.E.2d 345. True, under Ch. 197, § 2, the Probate Court has power to determine debts due from the estate on application by ... ...