E.S. Parks Shellac Co. v. Jones

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

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.

[265 Mass. 109]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 [265 Mass. 110]March 4, 1926, that notice of their appointment was given seasonably and affidavit

[163 N.E. 884]

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.

[265 Mass. 111]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...