Sullivan v. Martinelli
| Decision Date | 22 November 1927 |
| Citation | 261 Mass. 261,158 N.E. 662 |
| Parties | SULLIVAN v. MARTINELLI et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Hampden County; Edward T. Broadhurst, Judge.
Action by Edward J. Sullivan against Rosa Martinelli and others to recover on a replevin bond. Finding for plaintiff, and defendants except. Exceptions overruled.
Ralph W. Crowell, of Springfield, for plaintiff.
W. G. Brownson, for Springfield, for defendants.
This is an action upon a replevin bond, given to the plaintiff and signed by the defendants as principal and sureties. The defendant Rosa Martinelli, who will hereafter be referred to as the defendant, on August 8, 1921, brought an action of replevin against the plaintiff and upon the replevin writ seized an automobile. This writ was returnable to the police court of Springfield, now the district court, on August 27, 1921. When the automobile was seized the defendant gave the plaintiff the bond upon which the action is based. The condition of the bond is that:
‘If the said Rosa Martinelli shall prosecute her replevin to final judgment and shall pay such damages and costs as the defendant [plaintiff in the present action] shall recover against said Rosa Martinelli and also to return an [re] store the same goods and chattels in like good order and condition as when taken, in case such shall be the final judgment,then this bond to be void; otherwise in full force.'
The replevin writ was duly entered in court but the action was not brought to trial, and upon January 26, 1924, it was dismissed for failure to prosecute. Before the date of dismissal the defendant had sold the automobile.
[1][2] The first question to be decided is whether the dismissal of the action for failure to prosecute constitutes a breach of the condition of the bond. It has been held that a dismissal of an action for want of prosecution is a final judgment within the terms of R. L. c. 193, § 15 (now G. L. c. 250, § 15), Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92, but it does not follow that it is a prosecution of the action to final judgment within the terms of the bond. The dismissal did not result from such a prosecution but from a failure to prosecute. To hold that a judgment so obtained was a compliance with the terms of the bond would defeat its main purpose, which is to provide security to the obligee if he prevails for a return of the property and to indemnify him for such damages and costs as he may be entitled to recover. Parker v. Young, 188 Mass. 600, 602, 75 N. E. 98.
The principle which controls in the case at bar was stated in Carroll v. Berger, 255 Mass. 132, 135, 150 N. E. 870, 872:
‘The provision that the obligors of the bond ‘shall prosecute said action of replevin to final judgment’ plainly contemplates a prosecution to a final judgment on the merits so as to determine a right of possession in the plaintiffs in replevin or to direct a return and restoration to the defendants.'
See, also, Tucker v. Tremont Trust Co., 242 Mass. 25, 136 N. E. 62, 24 A. L. R. 1185; Pierce v. King, 14 R. I. 611. The judgment entered neither determined the right of possession in the plaintiff in replevin nor resulted in an order for the return and restoration of the property to the defendant. It follows that there has been a breach of the condition of the bond and that the entry of judgment for the penal sum of the bond was right.
[3][4][5][6] The amount for which execution should issue remains to be decided. The defendant had taken an...
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