Rosenblatt v. Foley
| Decision Date | 18 April 1925 |
| Citation | 252 Mass. 188,147 N.E. 558 |
| Parties | ROSENBLATT v. FOLEY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Burns, Judge.
Action of tort by Myer Rosenblatt against Madeline M. Foley and others, as executors of estate of Luigia Cosassa, deceased, to recover for personal injuries by plaintiff by falling on icy sidewalk alleged to have been caused by flow of water from buildings of decedent. Verdict directed for defendants, and plaintiff excepts. Exceptions overruled.Toye, Halligan & Murray, of Boston, for plaintiff.
L. C. Doyle, of Boston, for defendants.
This is an action of tort, brought against the defendants as executors of the estate of Luigia Cosassa, to recover damages for physical, personal injuries alleged to have been sustained by the plaintiff on February 14, 1920, by falling on ice, which ice, through the alleged negligence of the defendants' intestate, had frozen on the sidewalk in consequence of a flow of water from the buildings of the intestate onto that sidewalk. Due notice of the time, place, and cause of the accident was given the defendant.
The writ was dated December 31, 1921, and was returnable to the superior court on the first Monday of February, 1922; that is, on February 6, 1922. On the return day, the writ never having been in the hands of an officer for service, the plaintiff moved and the court allowed an order of notice to the defendants, returnable on the first Monday of March, 1922. The order of notice was served on February 8, 1922. On February 21, 1922, the defendants filed a general denial and the affirmative defense ‘that the injuries alleged were caused in whole or in part by the plaintiff's own negligence.’
On February 24, 1924, by consent and allowance by the court, the defendants filed the further answer that the plaintiff's action was not commenced within one year from the date of the qualification of the defendants as executors, and that said action is therefore barred under the statute. At the conclusion of the evidence for the plaintiff, it was agreed that the executors' bond, ‘which they are required to file in the probate court, was filed and approved on the 14th day of January, 1921,’ ‘and that notice was given of their appointment.’ The trial judge thereupon granted a motion in writing of the defendants that a verdict be ordered in their behalf, on the ground that the plaintiff had not brought his action against them within a year from the date of this qualification, and a verdict was ordered for the defendants, subject to the plaintiff's exception.
[1][2][3] The action of the judge was clearly right; the writ, sufficient in form, had not been served at all when the order of notice was issued, supposedly under G. L. c. 223, § 84. The general appearance of the defendants cured any defect in the jurisdiction of court over the parties. An action is commenced when a writ is sued out and delivered to an officer with a bona fide intent to have it served upon the defendant. Ford v. Phillips, 1 Pick. 202;Estes v. Tower, 102 Mass. 65, 3 Am. Rep. 439;J. Cushing Co. v. Brooklyn Trust Co., 235 Mass. 171, 126 N. E. 429. The date of the writ is not conclusive evidence of the commencement of the action; it may be held to be commenced at any day after the issuance of the writ which may...
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Westminster Nat. Bank v. Graustein
...it may be held to be commenced at any day after the issuance of the writ which may be most conducive to justice.’ Rosenblatt v. Foley, 252 Mass. 188, 190, 147 N. E. 558, 559;Estes v. Tower, 102 Mass. 65, 3 Am. Rep. 439;Farrell v. German American Ins. Co., 175 Mass. 340, 56 N. E. 572;J. Cush......
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...14 N. E. 174;Currier v. Studley, 159 Mass. 17, 20, 33 N. E. 709;McCarthy v. Simon, 247 Mass. 514, 519, 142 N. E. 806;Rosenblatt v. Foley, 252 Mass. 188, 191, 147 N. E. 558. It cannot be ruled as matter of law that this burden was sustained. Clearly the general finding for the defendant did ......
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...Bunker v. Shed, 8 Metc. 150, 153. Sometimes a requirement of delivery to an officer with that intent has been added. Rosenblatt v. Foley, 252 Mass. 188, 190, 147 N.E. 558; Parker v. Rich, 297 Mass. 111, 8 N.E.2d 345, and cases cited. But whatever the rule may be, it is well settled that the......
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