Savage v. Welch

• Citation: 246 Mass. 170
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 13 September 1923
• Parties: ISABELLE G. SAVAGE v. ANASTASIA A. WELCH & others.

246 Mass. 170

ISABELLE G. SAVAGE v. ANASTASIA A. WELCH & others.

Supreme Judicial Court of Massachusetts, Suffolk.

September 13, 1923

March 20, 1923.

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ.

Bond, To dissolve attachment. Evidence, Docket entries. Surety. Attachment. Jurisdiction. Judgment. Practice, Civil, Amendment, Rules of court, Notice. Notice. Constitutional Law, Due process of law.

In an action upon a bond to dissolve an attachment, docket entries in the action in which the bond was given are admissible to prove facts relating to the allowance therein of a motion for leave to file a substitute declaration after judgment.

The only method for the correction of entries upon the docket of a court is by order of the court whose proceedings they purport to record unless and until corrected, docket entries stand as incontrovertible proof of the proceedings they set forth. Per RUGG, C.J.

In an action at law, wherein the court had jurisdiction of the cause of action and of the parties, the defendant and a surety gave a bond to dissolve an attachment. After judgment, the court without notice to the defendant or to the surety allowed a motion for leave to file a substitute declaration. The judgment afterwards not being satisfied, the plaintiff brought an action upon the bond to dissolve attachment. Held that in the collateral proceeding upon the bond the defendant in the original action could not attack the validity of the judgment.

The declaration in an action of contract against a woman and a man was in a single count, stating that "the defendant made a promissory note" payable to the order of one S, copy of which with indorsements thereon was annexed, that the plaintiff was the holder for value and that "the defendant owes the plaintiff the amount of said note with interest."

The copy annexed was of a note made by the woman payable to S and first indorsed in blank by the man and then by S. The defendants and a surety gave a bond to dissolve an attachment. The action was heard by an auditor under an agreement that his findings of fact should be final and he heard and determined all issues against the woman as maker and the man as

indorser. Judgment was entered on the auditor's report.

Thereafter, without notice to either defendant or to the surety upon the bond, a motion was allowed as of the date of the filing of the original declaration for leave to file a substitute declaration in two counts, the first count being against the woman as maker of the note, and the second against the man as indorser. In an action subsequently brought upon the bond against the man and the woman and the surety, the surety contended that in the circumstances he was relieved from liability by the allowance of the amendment to the declaration. Held, that

(1) It was open to the surety to raise only two main questions: whether the action of the court allowing the motion for leave to file a substitute declaration was within its jurisdiction, and whether such action so far adversely affected the surety's rights as to relieve him of liability;

(2) In the circumstances, the court under G.L.c. 231, Section 56, had jurisdiction to determine that the motion should be allowed in affirmance of judgment because justice so required;

(3) Although the liability of the two defendants, one as maker and the other as indorser, was not clearly pleaded in the original declaration, it was plain that under G.L.c. 231, Section 4 they might have been joined in a single count, and that the only purpose of joining both as defendants in one action and declaring on the note was to hold both liable in accordance with their respective obligations in law;

(4) Even if there had been error of the court in construction and application of Rule 5 of the Superior Court (1915), which was not intimated, such error would not have affected its jurisdiction;

(5) The reference to the auditor under agreement that his findings of fact should be final did not limit the jurisdiction of the court to allow amendments to the pleadings;

(6) The legal rights of the surety were not affected by the action of the court as to the allowance of the amendment to the declaration in the original action, it appearing that the original action was tried on the merits on the issues raised by the substitute declaration touching the liability of both defendants on the note in accordance with their respective obligations on it, that no new cause of action was introduced by the substitute declaration and that the amount for which the surety could be held liable was not changed thereby;

(7) It was stated that it was doubtful whether Rule 5 of the Superior Court (1915), requiring the sending to the adverse party of a copy of a proposed amendment, applied to a case of this sort;

(8) It seems, that the allowance of the motion to file the substitute declaration without compliance with Rule 5 of the Superior Court (1915) and without a hearing, in the particular circumstances above described, was within the power of the court;

(9) No federal question as to unconstitutionality of the action of the court in allowing the motion for leave to file a substitute declaration was open to the surety;

(10) Even if such constitutional question were open to the surety and

Rule 5 of the Superior Court (1915) were assumed to be applicable, no impairment of the surety's constitutional rights was shown, as no act by a State depriving the surety of his property without due process of law was disclosed, but, at most, only erroneous rulings of law committed by the trial judge in the original action when acting within his jurisdiction.

Constitutional rights must be seasonably asserted in conformity to established rules or they will not be entertained.

CONTRACT upon a bond to dissolve an attachment given by Anastasia A. Welch (sometimes known as Welsh or Walshe), and William J. Welch as principals and Massachusetts Bonding and Insurance Company as surety. Writ dated January 4, 1922.

The condition of the bond was as follows: "The condition of this obligation is such, that whereas said Isabelle G. Savage has caused the Goods and Estate of said Anastasia A. Welch sometimes known as Anastasia A. Walshe and William J. Welch to the value of One Thousand ($1000.00) dollars, to be attached on mesne process, in a civil action, by virtue of a writ bearing date the 12th. day of March, A.D. 1915, and returnable to the Superior Court to be holden at Boston within and for the County of Suffolk in said Commonwealth, on the first Monday of April, 1915; in which writ said Isabelle G. Savage is plaintiff, and said Anastasia A. Welch sometimes known as Anastasia A. Walshe and William J. Welch are defendants. And whereas said defendants wish to dissolve the said attachment, according to law: Now therefore, if the above-bounden Anastasia A. Welch sometimes known as Anastasia A. Walshe and William J. Welch shall pay to the plaintiff in said action the amount, if any that he may recover therein, within thirty days after the final judgment in said action; and also shall pay to the plaintiff in said action, within thirty days after the entry of any special judgment in said action, in accordance with Chapter 177 of the Revised Laws of the Commonwealth of Massachusetts, the sum, if any, for which said judgment shall be entered; and also if the above named sureties shall pay to the said plaintiff within thirty days after the entry of any special judgment in said action, in accordance with Section 25 of said Chapter, the sum, if any, for which said judgment shall be entered; then the above-written obligation shall be null and void; otherwise it shall remain in full force and virtue."

The pleadings are described in the opinion. In the Superior Court, the action was tried before Weed, J. The entire docket entries in the original action in the Superior Court were as follows: "1915 April 5, Entered declaration filed.

" " 7, Defendants' claim of Jury. " " 27, Defendants' Answer. 1921 June 21, Plaintiff's motion that case be allowed to remain on docket, allowed by Court.

" " 23, Clarence L. Newton, Esq., appointed Auditor; hearings to begin July 15, 1921. Report to be filed on Aug. 15, 1921, by agreement in open Court, findings of fact to be final.

" " 23, Rule issued. " Aug. 10, Auditor's report.

" " 16, Plaintiff's motion for judgment on Auditor's report. " " 24, Motion for judgment allowed, judgment not to be entered before the second Monday of September.

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

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

" " 2, Plaintiff's substitute declaration allowed. " Oct. 24, Judgment for the plaintiff. Damages $936.14 Costs 40.86 Exon. November 7, 1921."

Material evidence and rulings asked for by the defendants are described in the opinion. By order of the judge, the jury found for the plaintiff and the judge ordered judgment for the plaintiff in the penal sum of the bond and interest, $1,050.67, and, the parties having waived their right to have the amount for which execution should issue determined by a jury, he determined and awarded an execution for the sum of $1,033.18 and reported the action for determination by this court upon a stipulation of the parties that, if the ordering of a verdict for the plaintiff was wrong, judgment was to be entered for the defendants; otherwise, the verdict and judgment were to stand and execution was to issue as ordered.

Pertinent statutory provisions are as follows: G.L.c. 231, Section 4: "All or any of the persons severally liable upon...