Toy v. Green
Decision Date | 26 March 1946 |
Citation | 319 Mass. 354,65 N.E.2d 558 |
Parties | TOY v. GREEN et al. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions and Appeals from Superior Court, Suffolk County; Dowd and Morton, Judges.
Supplementary proceedings by Sarah M. Toy against Sadie Green and another, wherein plaintiff charged that certain parcels of real estate were transferred without consideration. Motions to dismiss for lack of jurisdiction and requests for rulings that upon the evidence that should be findings of not guilty were denied, and defendants bring exceptions.
Exceptions to rulings on motions to dismiss overruled; exception of the named defendant to denial of request for finding of not guilty sustained; exception of the other defendant to denial of request for finding of not guilty overruled.
Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.
B. L. Grossman, of Boston, for plaintiff.
J. C. Johnston, of Boston, for defendant Sadie Green.
J. Friedberg, of Boston, for defendant Morris Green.
The plaintiff recovered judgment against the defendants Sadie Green and Morris Green, who are husband and wife, for a balance due on notes for money lent. Thereafter the plaintiff instituted supplementary proceedings against both defendants in the Municipal Court of the Dorchester District of the City of Boston. G.L.(Ter.Ed.) c. 224, § 14. Pending those proceedings she alleged as to each defendant ‘charges that since the debt was contracted or the cause of action accrued, the defendant or debtor has fraudulently conveyed, concealed or otherwise disposed of the whole or part of his property with intent to secure it to his own use or to defraud his creditors in that certain parcels of real estate were transferred without adequate consideration.’ G.L.(Ter.Ed.) c. 224, § 19, First. A special justice of the Municipal Court found the defendants not guilty. The plaintiff appealed to the Superior Court, where the defendants filed motions to dismiss for lack of jurisdiction. A judge denied the motions, and the defendantsclaimed exceptions. The case was tried before another judge, and the motions to dismiss were renewed and denied. The judge refused a request of each defendant for a ruling that upon the evidence there should be a finding of not guilty, and found the defendants guilty. The defendants excepted.
1. We first consider the motions to dismiss. The governing statute provides: G.L.(Ter.Ed.) c. 224, § 19. Compliance with the requirement that the creditor recognize with sufficient sureties was essential to the jurisdiction of the Superior Court. Clearwater Laundry Co., Inc., v. Wiley, 310 Mass. 255, 256, 37 N.E.2d 500. See Little v. Mathews, 317 Mass. 422, 423, 59 N.E.2d 13. We assume that the recognizance is void if the record of the Municipal Court does not show that it was taken before a justice of that court when exercising his powers and duties as such. Stack v. O'Brien, 157 Mass. 374, 376, 32 N.E. 351;Bent v. Stone, 184 Mass. 92, 95, 68 N.E. 46.
The docket in the Municipal Court showed the following: Even if no formal entry was made these entries might be considered as constituting the record itself. Warburton v. Gourse, 193 Mass. 203, 205, 206, 79 N.E. 270.
We are not called upon, however, to decide any question upon the docket entries alone, because the printed record in this court also contains what is entitled, ‘Extended memorandum of recognizance for judgment debtor [sic], on appeal from finding of guilty [sic], to Superior Court under G.L. Chap. 224 Chap. 334 Acts of 1927.’ This document bears the caption of the Municipal Court of the Dorchester District and reads:
We cannot accept the contention of the defendants that the foregoing paper was not the record of the proceedings in the Municipal Court. ‘The character of a pleading or other paper put upon the files of the court must be determined from its essential substance and not from the title, name or description attached to it.’ E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883, 884;Universal Adjustment Corp. v. Midland Bank, Ltd., 281 Mass. 303, 328, 184 N.E. 152, 87 A.L.R. 1407. Here the statute, G.L.(Ter.Ed.) c. 224, § 19, contemplated that the substance of the contents of the paper should be available in the Superior Court in the event of appeal.
At the hearing on the motions to dismiss, the defendants called as witnesses Dora Tatelman; the special justice who found the defendants not guilty; and the second assistant clerk of the Municipal Court. Their testimony was, in brief, that the special justice set the penal sum of the recognizance at $100 in favor of each defendant; that neither the plaintiff nor the two sureties recognized before the special justice or before anyone; and that the sureties did no more than to appear in the clerk's office and to make a sworn statement of assets and liabilities. The judge in the Superior Court ‘made the following entry’: The defendants excepted.
The judge was correct in ruling that parol evidence could not serve to contradict the record of the proceedings in the Municipal Court. Wells v. Stevens, 2 Gray 115, 117;Bryer v. American Surety Co. 285 Mass. 336, 337, 189 N.E. 109, and cases cited. We think that the defendants could not be heard to say that the plaintiff did not recognize with sufficient sureties, or that separate recognizances should have been given by the plaintiff to each defendant. There is nothing in the statute which invalidates one recognizance given jointly and severally to two defendants. Enough appears of record to show that the statutory requirements were fully met.
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