Sallinger v. Hughes

• Citation: 235 Mass. 104
• Parties: NATHAN SALLINGER v. JOHN F. HUGHES.
• Decision Date: 26 February 1920
• Court: United States State Supreme Judicial Court of Massachusetts

235 Mass. 104

NATHAN SALLINGER v. JOHN F. HUGHES.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1920

January 13, 1920.

Present: RUGG, C.

J., BRALEY, DE COURCY, CARROLL, & JENNEY, JJ.

Poor Debtor. Jurisdiction. Words, "Final order."

The condition of a recognizance given by a judgment debtor when arrested on an execution was that the debtor, within thirty days from the date of the writ, should "deliver himself up for examination . . . and appear at the time fixed for his examination and from time to time until the same is concluded, and not depart without leave of the magistrate . . and abide the final order of the magistrate thereon." On a day set, the debtor appeared before the magistrate and was examined. At the close of the examination the magistrate made an order refusing the oath to the debtor and the clerk of the court prepared the certificate for the debtor's commitment and attached it to the execution. Later on the same day, the debtor's counsel called the attention of the magistrate to a certain statute and he thereafter, and before the execution with the certificate attached had left the custody of the court or had been handed to the officer, ordered the clerk to remove the certificate from the execution and continued the case to the next day, when, against the creditor's objection, he rescinded the order made on the preceding day and the poor debtor's oath was administered to the debtor. Held, that

(1) Under the circumstances, the order refusing the oath to the debtor was not a "final order;"

(2) The magistrate under the circumstances had power to reconsider his first decision and to correct an error of law;

(3) The magistrate committed no error in directing the clerk to remove from the execution the certificate of arrest and in ordering the debtor's discharge;

(4) There was no breach of the recognizance.

CONTRACT upon a recognizance given in a poor debtor proceeding by Eugene L MacDonald as principal and John Francis Hughes as surety. Writ in the Municipal Court of the City of Boston dated September 21, 1918.

The material evidence at the trial in the Municipal Court is described in the opinion. At the close of the evidence, the plaintiff asked for the following rulings:

"1. That upon all the evidence the plaintiff is entitled to recover. "2. All the proceedings of a magistrate after he has adjudicated on the question of the right of the debtor to take the poor debtor's oath are coram non judice and void.

"3. A magistrate has no authority or jurisdiction to rescind or change his decision after he has decided to refuse to administer a poor debtor's oath.

"4. An act which is coram non judice is an act done by a court which has no jurisdiction either over the person, the cause, or the process.

"5. If the court finds that after the magistrate's decision to refuse the oath on September 18, 1918, he did, at the debtor's request, order the certificate, which the clerk had attached to the execution and signed, to be removed from the execution, then the magistrate at the request of the debtor rendered it impossible for the arresting officer to commit the debtor and the recognizance was breached because the debtor failed to abide the final order of the court.

"6. If the magistrate does an act at the debtor's request which renders it impossible for the arresting officer to procure a process from the court with which to commit the debtor, the recognizance, which is absolute, is not complied with by the debtor and renders his surety liable.

"7. All the acts of a debtor who has recognized under a poor debtor recognizance are done at the peril of the surety. The burden is upon the debtor to abide the final order of the court and all acts and commissions of the debtor which disable the officer to commit the debtor are done by the debtor at the peril of himself and his sureties.

"8. The debtor runs the risk of all irregularities in the proceedings...