Salvin v. Sidman

• Decision Date: 24 May 1918
• Citation: 119 N.E. 704,230 Mass. 278
• Parties: SALVIN v. SIDMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 278

119 N.E. 704

SALVIN

v.SIDMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1918.

Report from Municipal Court of Boston, Appellate Division.

Action by Bertha Salvin against Philip Sidman, resulting in finding for plaintiff; the rulings and refusals to rule being reported to the appellate division of the municipal court of the city of Boston, which dismissed the report, and defendant appeals. Order dismissing report affirmed.

Samuel L. Wolfson, of Boston, for plaintiff.

Samuel Sigilman and Charles H. Dow, both of Boston, for defendant.

CROSBY, J.

This is an action against a surety on a bond to dissolve an attachment. The original action (in which the bond was given) was brought in the municipal court of the city of Boston by the plaintiff against Bessie Silverman. After the bond was given the plaintiff filed a motion to amend the writ and declaration by adding thereto the name of M. Silverman, otherwise known as Morris Silverman, as a party defendant. This motion was allowed by the court with the consent of the attorney of record of the original defendant, who on the same day entered his appearance for Morris Silverman. It did not appear that the defendant in this action had notice of the amendment. Both defendants in the original action were afterwards defaulted and judgment was entered against them; before the entry of such judgment, the plaintiff filed a promissory note for $75, signed by B. Silverman on the face, bearing the indorsement ‘Mr. M. Silverman.’

[1] The first contention of the defendant is that the judgment in the original action was entered upon a default and before the time given for filing an answer by the defendant M. Silverman, under the rules of the municipal court of the city of Boston, had expired, and that therefore the judgment was prematurely entered. But the judgment having been entered in the lawful exercise of the power of the court and in the absence of fraud or collusion, is conclusive against the defendant in the case at bar. Tapley v. Goodsell, 122 Mass. 176, 182;Cutter v. Evans, 115 Mass. 27;Tracy v. Maloney, 105 Mass. 90.

[2] The defendant also contends that the allowance of the amendment without notice to him, the effect of which was to add M. Silverman as a party defendant after the bond had been biven, was a discharge of the surety. It has been held by this court that an action cannot be maintained against a surety on a bond to dissolve an attachment, if after the bond is given a different plaintiff is substituted by amendment, of which the surety was given no previous notice as required by R. L. c. 173, § 121. Werlin v. Equitable Surety Co., 227 Mass. 157, 116 N. E. 484;Frank v. Millen, 226 Mass. 71, 115 N. E. 48.Mathews Slate Co. v. Sweeney, 219 Mass. 285, 106 N. E. 975.

It is plain that a surety upon a bond should not be held liable without notice to him of an amendment which imposes upon him a liability greater or different than that which he assumed by signing the bond. In the case at bar the amendment did not alter or affect the defendant's liability-its allowance simply added a party defendant who, who, with the original defendant, became liable to the plaintiff for the debt upon the entry of judgment. It was...