Savage v. Walshe

• Decision Date: 14 September 1923
• Citation: 140 N.E. 787,246 Mass. 170
• Parties: SAVAGE v. WALSHE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

246 Mass. 170

140 N.E. 787

SAVAGE

v.WALSHE et al.^*

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 14, 1923.

Report from Superior Court, Suffolk County; Alonzo R. Week, Judge.

Action by Isabelle G. Savage against Anastasia A. Walshe and others, on a bond given to dissolve an attachment made in a prior suit brought by plaintiff against two of the defendants, and conditioned to pay to plaintiff, within thirty days after final judgment, such amount, if any, as she might recover therein. Reported from the superior court, after an order for judgment in favor of plaintiff on stipulation that if an order directing a verdict for plaintiff was wrong it should be vacated and judgment entered for defendants, and that otherwise the verdict should stand and judgment be entered thereon. Judgment for plaintiff on the verdict.

The answers in addition to a general denial denied liability on the ground that judgment in the prior suit was not entered on the original declaration but on an amended declaration allowed without notice to the defendants in such suit or to the surety on the attachment bond. Defendants requested certain rulings which the court denied. Plaintiff moved for a directed verdict which motion was granted and defendant excepted to the refusal of its rulings and to the allowance of such motion.Devine, York & Ellsworth, John H. Devine, and A. Chesley York, all of Boston, for plaintiff.

P. H. Kelley, of Boston, for defendants.

RUGG, C. J.

This is an action against the principals and surety on a bond given to dissolve an attachment made in an earlier action in our superior court by the plaintiff against the principals on the bond as defendants. The declaration in the present case alleges recovery by the plaintiff of judgment for damages and costs in the earlier action, and that the defendants did not pay the amount thereof within thirty days after rendition of that judgment, and that thereby there was breach of the condition of the bond. The answers of the several defendants herein plead general denial and that judgment in the prior action was rendered, not on the original declaration, but on an amended declaration allowed without notice to either defendant or to the surety on the bond to dissolve the attachment. The defendants admitted the execution and delivery of the bond.

The declaration as originally filed in the earlier action was in a single count and in substance was that ‘the defendant made a promissory note’ payable to the order of one Stanley, copy of which with indorsements was annexed, that the plaintiff was the holder for value, and ‘the defendant owes the plaintiff the amount of said note with interest.’ The copy annexed to that declaration was of a promissory time note in due form, then overdue, made by the defendant Anastasia A. Walshe and first indorsed in blank by the defendant William J. Walshe, waiving demand, notice and protest, and indorsed without recourse by the payee. The defendants filed a joint answer pleading general denial, payment, and want of consideration, and denying the genuineness of the signatures and demanding proof of signatures. The case was referred to an auditor upon agreement that his findings of fact were to be final. The auditor's report disposed of all issues raised by the pleadings adversely to the defendants and in favor of the plaintiff. Motion for judgment in accordance with the auditor's report was made and allowed to take effect at a future date. Thereafter the plaintiffs moved for leave to file a substitute declaration in two counts, the first in proper form alleging liability of the defendant Anastasia A. Walshe, as maker, and the second in proper form alleging liability of the defendant William J. Walshe, as indorser, of the same note, copy of which was annexed to the original declaration. The pertinent docket entries were:

‘1921, Aug. 24. Motion to vacate order for judgment.

‘1921, Sept. 28. Motion to vacate order for judgment dismissed (Declaration to be amended. No judgment until amended.)

‘1921, Nov. 2. Plaintiff's motion for leave to file substitute declaration as of date of April 5, 1915, filed and allowed.

‘1921, Nov. 2. Plaintiff's substitute declaration allowed.’The motion to file the substitute declaration was allowed as of the date when the original declaration was filed.

It was admitted that no notice of the filing and allowance of the substitute declaration was in fact sent to the defendants in the earlier action or to the surety on the bond to dissolve the attachment, and that the defendants were not heard in relation thereto.

At the trial in the superior court a verdict was directed for the plaintiff. By consent of parties the amount for which execution should issue was flxed by the court. The case was reported to this court on the stipulation that if the order directing verdict was wrong, it is to be vacated, otherwise judgment and execution for plaintiff.

The docket entries were admissible. They are a part of the record of the court. They import incontrovertible verity. They cannot be contradicted. They stand as final. The only method for their correction is by order of the court. Cote v. New England Navigation Co., 213 Mass. 177, 179, 99 N. E. 972. The truth of records of our superior court is a different matter from jurisdiction of a court of a foreign jurisdiction over the parties which may be attacked in any appropriate proceeding in our courts. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 206 to 215, 89 N. E. 193,40 L. R. A. (N. S.) 314.

It is apparent from this narration of facts that the superior court had jurisdiction of the cause and the parties in the earlier action. The judgment entered therein was a domestic judgment of a court of general common-law jurisdiction. The validity of such a judgment cannot be attacked or impeached by the parties in any collateral proceeding. That is too well settled by authority to be open to discussion. The reason for this is that the remedy by review or writ of error is held to be more appropriate, and therefore exclusive. Hendrick v. Whittemore, 105 Mass. 23;Joyce v. Thompson, 229 Mass. 106, 118 N. E. 184;Heard v. Calkins, 234 Mass. 526, 125 N. E. 596.

It follows from this principle that neither of the defendants in the earlier action can assail in the present action the allowance of the motion to file the substitute declaration. They had ample opportunity in other ways for the protection of whatever rights they had, if any.

[4]The surety on the bond as a defendant in this action is not bound by the allowance of the motion to file the substitute declaration in the same way and manner and to the same extent as were the original defendants. The presumption as between parties to a proceeding in our courts that amendments to a declaration when allowed by the court are for the identical cause for which the action was brought, Clark v. New England Telephone & Telegraph Co., 229 Mass. 1, 5, 6,118 N. E. 384, does not bind the surety. G. L. c. 231, § 138; Tucker v. White, 5 Allen, 322;Mathews Slate Co. v. Sweeney, 219 Mass. 285, 106 N. E. 975;Salvin v. Sidman, 230 Mass. 278, 119 N. E. 704.

[5][6] The surety is not permitted to raise now all the questions which would have been open to a party defendant to the original cause. This surety cannot raise all the objections to the allowance of the motion to file the substitute declaration which might have been urged by the defendants in the original action at the time of its allowance. The obligation assumed by the surety upon the bond was to be found if the amount which the plaintiff might recover in the earlier action was not paid within thirty days after the final judgment. He did not thereby become a party to the original action, nor assume its direction in behalf of the principals on the bond. He did not agree to defend it. The defense of that action was left by the surety wholly in the hands of the defendants who were principals on the bond. Therefore the surety was bond to take that litigation as it was left by the original defendants, principals to the bond, so far as concerns the cause of action pending at the time the bond was given. See Forbes v. Allen, 240 Mass. 363, 366, 134 N. E. 244, and Rollins v. Bay View Auto Parts, 239 Mass. 414, 422, 132 N. E. 177. No matter how many errors of law were committed touching the conduct of that litigation, so long as it was confined to the cause of action as to which the surety assumed suretyship and there was no collusion as to the judgment, the surety has no right to complain in an action against him on the bond. The surety in a sense was represented by the principals as defendants in the earlier litigation. Washington Ice. Co. v. Webster, 125 U. S. 426, 444, 446, 8 Sup. Ct. 947.31 L Ed. 799;Stovall v. Banks, 10 Wall. 583, 19 L. Ed. 1036;Wm. W. Bierce, Ltd., v. Waterhouse, 219 U. S. 320, 31 Sup. Ct. 241, 55 L. Ed. 237.

[7] It must be presumed that the motion to file the substitute declaration was allowed rightly so far as concerned the original defendants.

At this stage of the proceedings the surety can raise only two main questions: (1) The jurisdiction of the court to allow the motion, and (2) the adverse effect upon his rights of the allowance of the motion.

1. It is manifest that the court had jurisdiction to allow the motion. It is common practice to allow amendments to declarations after a trial before an auditor in order to make the pleadings conform to the actual issues tried. Fisher v. Doe, 204 Mass. 34, 38, 39, 90 N. E. 592, and cases there collected. If the court made an error of law in dealing with the motion to file the substitute declaration while acting within his jurisdiction, that is not defect of jurisdiction. If he erred in his construction of rule 5 of the superior court (1915), or any other rule of procedure or correct step in practice, or overlooked it altogether, that did not affect the jurisdiction of the court to allow the motion to...