E.S. Parks Shellac Co. v. Jones

• Decision Date: 27 November 1928
• Citation: 265 Mass. 108,163 N.E. 883
• Parties: E. S. PARKS SHELLAC CO. v. JONES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 108

163 N.E. 883

E. S. PARKS SHELLAC CO.

v.JONES et al.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 27, 1928.

Report from Supreme Judicial Court, Bristol County.

Suit by the E. S. Parks Shellac Company against Frederick Harris, after whose death Frederick M. Jones and another, executors of his will, appeared specially. From a decree of dismissal, plaintiff appeals. On report. Decree affirmed.

J. Little, of Fall River, for plaintiff.

L. M. Friedman, of Boston, for executors.

RUGG, C. J.

This is a suit by a creditor to enforce the statutory liability of a director and president of a domestice corporation. The bill was filed in July, 1919. Suggestion that the defendant had died on February 5, 1926, while the suit was pending, was filed on April 1, 1927. The executors of the will of the defendant did not voluntarily appear. Summons to them to come in and defend the suit issued on June 9, 1927. The executors appeared specially on July 7, 1927. On the same day they filed a paper entitled ‘Objection to the Jurisdiction of the Court and Motion of the Executors to Dismiss.’ Therein it was alleged in substance that the original defendant died on February 5, 1926, that executors of his will were duly appointed and qualified on March 4, 1926, that notice of their appointment was given seasonably and affidavit thereof filed on March 11, 1926, all pursuant to the requirements of law, and that the court was without authority to summon them to appear in the suit when the citation issued, being more than one year after their appointment and the due notice and affidavit thereof, and praying that the suit might be dismissed as to them.

There is no such pleading known in equity as ‘Objection to the Jurisdiction of the Court and Motion of the Executors to Dismiss,’ the title by which the paper filed by the executors is headed. Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N. E. 7, and cases there collected. The substance of the matter thus put upon the files of the court was proper for plea in equity. A plea was the appropriate form of equity pleading for the defendant to adopt to bring the facts before the court. Eastman Marble Co. v. Vermont Marble Co., 236 Mass. 138, 144, 148, 128 N. E. 177, and cases cited; Crease v. Babcock, 10 Metc. 525, 543. Whether this form of pleading be treated as in abatement, to the jurisdiction, or as setting up the short statute of limitations or other bar to the further prosecution of the suit, in its essential substance the matter set forth was proper for a plea in equity. 1 Daniells Ch. Practice (6th Am. Ed.) 626, 627, 639; Story's Eq. Pleading (10th Ed.) §§ 700, 706, 750. The report describes this paper as a plea.

The character of a pleading or other paper put upon the files of the court must be determined from its essential substance and not from the title, name or description attached to it. Corey v. Tuttle, 249 Mass. 135, 137, 144 N. E. 230;Rothstein v. Commissioner of Banks, 258 Mass. 196, 198,155 N. E. 70;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Frati v. Jannini, 226 Mass. 430, 432, 115 N. E. 746. See Attorney General v. Henry, 262 Mass. 127, 130, 159 N. E. 539. Similar pleading, both as to its title and substance, was considered on its merits without discussion in Beal v. Lynch, 242 Mass. 65, 136 N. E. 172. The case at bar will be considered on the merits of the facts set forth as if they had been pleaded with technical accuracy both as to title and substance. There is nothing inconsistent with this result in Finance Corporation of New England v. Parker, 251 Mass. 372, 146 N. E. 696.

At the hearing before the single justice no question was raised as to the truth of the facts set forth in the plea. The plaintiff also agreed that no relief was sought against any party except the deceased director and president and his estate in the hands of his executors.

It is provided by G. L. c. 228, § 4, that in a ‘personal action the cause of which survives, if there is only * * * one defendant and he dies after the commencement of the action and before final judgment, the action may proceed * * * against his executor. * * * If the executor * * * does not voluntarily appear, the surviving party may take out a citation from the court requiring the executor * * * to appear; * * *’ and by section 5 that ‘such citation * * * shall not issue after the expiration of one year from the time such executor * * * has given bond, if he has given the notice of his appointment as required by law.’ These statutory provisions are so plain as to show without discussion that, in the ordinary personal action which survives, the executors of the deceased defendant ought not rightly to be summoned in to defend the action upon the facts as to appointment and notice and return of affidavit disclosed on the present record. The burden commonly rests upon the plaintiff in such cases to ascertain the fact of death and act seasonably to protect his rights. Beal v. Lynch, 242 Mass. 65, 68, 69, 136 N. E. 172;Finance Corporation of New England v. Parker, 251 Mass. 372, 377, 146 N. E. 696;Haven v. Smith, 250 Mass. 546, 548, 146 N. E. 18;Wells v. Child, 12 Allen, 330, 333. See Leach v. Leach, 238 Mass. 100, 130 N. E. 262.

The plaintiff seeks to avoid the effect of this short statute of limitations on two grounds.

Its first contention is that the statute is not applicable because, at the time the cause of action accrued and the suit was instituted, the statute in force was R. L. c. 171, § 6, whereby the applicable statute of limitations was two years, and that the citation here in issue was taken out before the expiration of that time. The reduction of the period of limitation from two years to one year became effective on January 1, 1921, by the enactment of G. L. c. 228, § 5, the provision of St. 1919, c. 333, § 34, to the same effect, having been postponed as to its effective date. St. 1919, c. 333, § 41, and St. 1920, c. 2, § 2. The plaintiff relies in this connection upon the settled principle that statutes are presumed to be prospective and not retroactive in operation. Hanscom v. Malden & Melrose Gaslight Co., 220 Mass. 1, 3-5, 107 N. E. 426, Ann. Cas. 1917A, 145, and cases there reviewed; Fullerton-Krueger Lumber Co. v. Northern Pacific Railway Co., 266 U. S. 435, 437, 45 S. Ct. 143, 69 L. Ed. 367. It was held by the whole court upon great deliberation, with full review of authorities, in Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402,14 Ann. Cas. 349, that that principle was not applicable to a statute shortening the period of limitation for bringing an action, provided a reasonable time is allowed within which an action may be brought after the enactment of the statute. Further discussion of the point is unnecessary in view of that decision. It has been frequently followed in subsequent decisions. Nelson v. Blinn, 197 Mass. 279, 282, 83 N. E. 889,15 L. R. A. (N. S.) 651, 125 Am. St. Rep. 371,14 Ann. Cas. 574;Lewis v. Crowell, 205 Mass. 497, 91 N. E. 910;Colby v. Shute, 219 Mass. 211, 215, 106 N. E. 1006;Tabolsky v. Crandon, 259 Mass. 32, ...