Rosen v. United States Rubber Co.

Citation167 N.E. 655,268 Mass. 403
PartiesROSEN v. UNITED STATES RUBBER CO. et al. SAME v. LANE BROS. CO. et al.
Decision Date12 September 1929
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Appeals from Municipal Court of Boston, Appellate Division.

Separate actions by William C. Rosen against the United States Rubber Company and another and against Lane Bros. Company and another. From adverse orders of the appellate division after reports from the municipal court of Boston, plaintiff appeals. Affirmed.

W. C. Rosen, of Boston, for plaintiff.

F. H. Pardee, of Boston, for defendants.

RUGG, C. J.

These are two actions, each against the principal and surety on a replevin bond. The principal defendant in each case sued out a writ of replevin against the present plaintiff and thereby took from him certain merchandise. Each gave a bond (wherein was described the writ of replevin) with the condition that, if the principal (the plaintiff in replevin and the present principal defendant) ‘shall prosecute said action of replevin to final judgment, and shall pay such damages and costs as the said William C. Rosen, assignee, shall recover against it and shall also return the property replevied, in case such shall be the final judgment, then this obligation shall be void, otherewise it shall be and remain in full force and virtue.’

In each action of replevin a trial was had and finding made for the defendant, but no order was made for the return of the goods; no damages were assessed; subsequently judgment was entered for the defendant and for costs in a specified sum and execution issued therefor. Tender of costs has been made by each principal defendant and refused by the plaintiff. The plaintiff has made demand for the return of the merchandise replevied and that has been refused.

The single question is whether, in these circumstances, the plaintiff can recover the value of the merchandise replevied. Stated differently and more accurately, the question is whether these facts show a breach of the condition of the bond.

[1][2] The replevin cases have gone to judgment. In replevin the entry of judgment for defendant without more is in law a proper judgment provided it is required by the facts. On its face there is nothing illegal or incomplete about such a judgment. It is final. It requires no further action by the court. It needs no elucidation. Whitwell v. Wells, 24 Pick. 25, 32, 33;Standard Varnish Works v. Cushing, 202 Mass. 576, 583, 584, 89 N. E. 163. A. simple final judgment for the defendant in replevin, without more, carries in law no implication for return of the property of for the payment of damages. If the court intended any result of the nature, it must appear in the judgment. The implication from the absence of any such order is that neither an order for return of the property nor an assessment of damages was intended.

The district court in which the judgments for the defendant in replevin were entered had jurisdiction of replevin cases where the value of the property taken was no larger than here shown. G. L. c. 218, § 19. With respect to those actions it was a court of superior and general jurisdiction. G. L. c. 218, § 4. Every presumption is indulged in favor of the regularity of its proceedings. Its judgments are not open to collateral attack. Commonwealth v. Duggan, 257 Mass. 465, 469, 154 N. E. 67. If the defendant in replevin was entitled to return of the merchandise, the time, place and forum for adjudication to that effect was at the trial of the action in replevin. Ashcroft v. Simmons, 163 Mass. 437, 40 N. E. 171.Barry v. O'Brien, 103 Mass. 520. The same is true as to damages other than damages incidental to failure to comply with an order for the return of the property. Tucker v. Tremont Trust Co., 242 Mass. 25, 136 N. E. 62, 24 A. L. R. 1185, and cases there reviewed. Whether the defendant might have been entitled to nominal damages, if that contention had been asserted at the trial of the replevin cases, Jarvis v. DePeza, 251 Mass. 447, 146 N. E. 662, cannot now...

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11 cases
  • Commonwealth v. Mannos
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Febrero 1942
    ...be extended to a point that was not then before the court. Eaton v. Walker, 244 Mass. 23, 138 N.E. 798;Rosen v. United States Rubber Co., 268 Mass. 403, 167 N.E. 655, 65 A.L.R. 1299;Thibeault v. Poole, 283 Mass. 480, 186 N.E. 632. We next consider the various exceptions taken on a similar g......
  • Allard v. Estes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 26 Septiembre 1935
    ...courts of superior and general jurisdiction.’ Commonwealth v. Duggan, 257 Mass. 465, 469, 154 N. E. 67;Rosen v. United States Rubber Co., 268 Mass. 403, 406, 167 N. E. 655, 65 A. L. R. 1299;Long v. George (Mass.) 195 N. E. 377. This applies to the defendant in his conduct as judge of a dist......
  • Allard v. Estes
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 26 Septiembre 1935
    ...... filed a voluntary petition in bankruptcy in the United States. District Court for the District of Massachusetts. The. attorney ...Duggan,. 257 Mass. 465, 469, 154 N.E. 67; Rosen v. United States. Rubber Co., 268 Mass. 403, 406, 167 N.E. 655, 65 A.L.R. ......
  • Commonwealth v. Mannos
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Febrero 1942
    ...it was made, but it cannot be extended to a point that was not then before the court. Eaton v. Walker, 244 Mass. 23 . Rosen v. United States Rubber Co. 268 Mass. 403 Thibeault v. Poole, 283 Mass. 480 . We next consider the various exceptions taken on a similar ground under the conspiracy in......
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