La Presti v. Burton

• Decision Date: 01 July 1936
• Citation: 2 N.E.2d 1018,295 Mass. 6
• Parties: LA PRESTI v. BURTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 6

2 N.E.2d 1018

LA PRESTI v. BURTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1936

Exceptions from Superior Court, Suffolk County; Sisk, Judge.

Action of tort by Carmelo La Presti against Hiram M. Burton, wherein defendant's executor filed a plea in abatement after defendant's death. The plea was sustained, and plaintiff filed exceptions.

Exceptions sustained.

B. J. Killion, of Boston, for plaintiff.

W. G Reed, of Boston, for defendant.

RUGG Chief Justice.

This is an action of tort to recover compensation for personal injuries alleged to have been received by the plaintiff through the negligence of Hiram M. Burton, hereafter called the defendant. Service was made on the defendant who appeared and answered on January 23, 1932. On September 19, 1935 there was filed by attorneys in behalf of his executor the suggestion that the death of the defendant occurred on September 13, 1934. On October 14, 1935, there was filed by attorneys in behalf of the executor a motion to stay proceedings ‘ until determination of the insolvency proceedings in the Probate Court of Plymouth County.’ A certification to the appointment of commissioners to examine claims against the insolvent estate of the defendant was attached. On December 3, 1935, the attorneys for the executor filed a plea in abatement. It was in form a special appearance for the sole purpose of pleading to the jurisdiction of the court. It set forth that the defendant died on September 13, 1934, that the executor was duly appointed on October 22, 1934, that no citation or order of notice had been taken out by the plaintiff requiring the executor to appear and to take on the defence of the action and that the time for taking out such citation had expired under G.L.(Ter.Ed.) c. 228, § 4 and section 5, as amended, and prayed that the action might abate. The plea was sustained. The exceptions of the plaintiff bring the case here.

The executor qualified and gave bond on October 22, 1934. No citation was taken out requiring the executor to appear as provided by G.L. (Ter.Ed.) c. 228, § 4. Therefore the plaintiff is barred from prosecuting this action since the period of limitation of one year has elapsed, G.L.(Ter.Ed.) c. 228, § 5, as amended by St.1933, c. 221, § 7, unless the executor has voluntarily appeared within the meaning of G.L.(Ter.Ed.) c. 228, § 4. Both a voluntary appearance and a summons are not required. Either is enough. Garber v. Hirsh, 225 Mass. 422, 424, 114 N.E. 670. The mere suggestion of death of the defendant was not such voluntary appearance. The only question for decision is whether the filing of the motion to stay the action until ‘ determination of the insolvency proceedings' constituted a voluntary appearance. That motion to stay the action was filed eight days before the expiration of the one year period limited by G.L.(Ter.Ed.) c. 228, § 5, as amended by St.1933, c. 221, § 7. Such a motion is provided for by G.L. (Ter.Ed.) c. 198, § 31. That motion in form was not a special appearance. It is...