Sturman v. McCarthy

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CARROLL
• Citation: Sturman v. McCarthy, 232 Mass. 44, 121 N.E. 522 (Mass. 1919)
• Decision Date: 09 January 1919
• Parties: STURMAN v. McCARTHY.

232 Mass. 44

121 N.E. 522

STURMAN

v.McCARTHY.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 9, 1919.

Exceptions from Superior Court, Middlesex County; Marcus Morton, Judge.

Action by Sarah Sturman against John J. McCarthy. The trial court found for plaintiff, and defendant excepts. Exceptions sustained.

Geo. P. Beckford, of Boston, for plaintiff.

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

CARROLL, J.

This is an action against the surety on a poor debtor's recognizance. The debtor, McGann, who was arrested on execution December 5, 1916, entered into a recognizance under R. L. c. 168, § 30.¹ Within 30 days from his arrest he did not ‘deliver himself up for examination,’ but within that time, on January 3, 1917, an application to take the oath for the relief of poor debtors was made by his attorney in the municipal court of the city of Boston. On January 10, 1917, the time fixed for the examination, the debtor was present in court, was sworn and examined by the plaintiff, and thereafter the hearing was continued from time to time, either by agreement or by order of the court, until May 10, 1917.

The breach relied on is that the debtor did not personally deliver himself up for examination within 30 days after his arrest, the application being made by his counsel.

In Howard v. Roach, 226 Mass. 80, 115 N. E. 289, it was decided that when the application is made, the debtor must appear in person and not merely by attorney, within 30 days after his arrest, in order to comply with the condition of the recognizance and the terms of the statute. In Howard v. Roach there was no examination of the debtor by the creditor and nothing was done to preclude him from relying on the exact terms of the recognizance.

The question we have to decide is whether the plaintiff, by taking part in the examination of the debtor, was prevented from relying on the debtor's default in failing to deliver himself within 30 days following his arrest.

In McInerny v. Samuels, 125 Mass. 425, the debtor applied to the magistrate on July 9, 1877, to fix a time for his examination. The time was fixed for July 13, but the notice served on the creditor stated the time of the examination to be July 18. Although this notice was not defective in form or service, and the Gen. St. c. 124, § 14, provided that no new notice to take the oath should be given until the expiration of 7 days after the service of the former notice, unless defective in form or service, on July 11 the magistrate issued another notice returnable July 13. On that day the creditor appeared and examined the debtor and after the hearing had been adjourned to July 23, the creditor not appearing, the debtor was discharged. The creditor claimed that all the proceedings under the notice of July 11 were coram non judice and therefore absolutely void. It was decided that the magistrate had jurisdictionof the subject-matter and the parties, and the plaintiff by appearing and taking part in the proceedings gave up his right to rely on the defect in the procedure.

In Bliss v. Kershaw, 180 Mass. 99, 101, 61 N. E. 823, it was held even if it be assumed that the notice issued was fatally defective, that this was a defect which might be waived and the creditor by appearing in court and arranging for a continuance of the case was prevented from taking advantage of the defect in the notice. It is the duty of the debtor to have a competent magistrate present at the time fixed for the examination; and if without fault by the debtor, the magistrate fails to be present, the recognizance is broken; but even this provision of the statute which is for the security of the creditor may be waived by him. Vinal v. Tuttle, 144 Mass. 14, 10 N. E. 489. Where the judge is absent through illness and the debtor fails to appear, the creditor can relinquish the right to rely on this default. Mt. Washington Glass Works v. Allen, 121 Mass. 283;Radovsky v. Sperling, 189 Mass. 507, 75 N. E. 949. By agreement of the parties, without the surrender of the debtor by his surety, another surety was substituted. It was held that this agreement could be made. ‘The judgment creditor is always at liberty to waive formalities that are intended for his security, if he should see fit to do so.’ Pacific Mutual Insurance Co. v. Canterbury, 104 Mass. 433, 435. In Andrews v. Knowlton, 121 Mass. 316, the debtor neither delivered himself up for examination nor gave the notice required by the recognizance. It was decided in a suit on the recognizance that it was competent for the debtor to show that his failure to comply with the terms of the contract was by agreement with the creditor. It has also been decided that no advantage can be taken of defective service of the notice if the defective service is accepted as a sufficient service. Williams v. Kimball, 132 Mass. 214;Goldenberg v. Blake, 145 Mass. 354, 14 N. E. 171.

Even where the true name of the creditor does not appear in the notice, if the service is assented to, the creditor cannot take advantage of the defect. Mutual...