Warburton v. Gourse

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: BRALEY
• Citation: 79 N.E. 270,193 Mass. 203
• Decision Date: 27 November 1906
• Parties: WARBURTON v. GOURSE.

193 Mass. 203
79 N.E. 270

WARBURTON
v.
GOURSE.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 27, 1906.

Report from Superior Court, Bristol County; Wm. Schofield, Judge.

Action by Thomas D. Warburton against Simon Gourse on a poor debtor's recognizance conditioned that the debtor should, within 30 days after his arrest, deliver himself up for examination before some court of record, etc., giving notice of the time and place thereof as provided by law and appearing at the time fixed for his examination, and from time to time until the same was concluded, and not depart without leave of the court or magistrate, making no default at any time fixed for his examination, and abide the final order of the court or magistrate thereon. There was an appeal from the district to the superior court, which being dismissed, the trial proceeded on its merits, and plaintiff offered the record of the poor debtor proceeding in the district court, the material portions of which were as follows: ‘Hearing upon said debtor's application was begun May 3, 1905, and thereupon continued to August 3, 1905, at 9 a. m., and on August 3, 1905, was further continued to September 30, 1905, at 9 a. m., at which last date nothing was done in said proceedings between the hours of 9 and 10 a. m. At 2 minutes past 10 o'clock a. m. on September 30, 1905, the debtor first called the court's attention to his presence in court, and moved to continue the proceedings herein, but this motion was overruled.’ Plaintiff requested the court to rule that the duty of keeping the poor debtor proceedings alive was on the debtor throughout; second, that the court's jurisdiction was ended at the expiration of the hour of the last continuance; third, that the debtor's failure to take any steps towards submitting himself for examination within the hour of the last continuance constituted a fatal breach of his recognizance, for which plaintiff was entitled to recover; and, fourth, that on the whole record plaintiff was entitled to recover. Defendant offered oral evidence to supplement the record that the debtor was in the district court, which was then in session, continuously from 9:30 to 10 a. m. September 30, 1905, and from the time the motion to continue was made in person and by his attorney, who during the hour from 9 to 10 a. m. attempted to call the court's attention to the case, but without success, and that the creditor also was present by his attorney during the hour. This evidence the court excluded, and defendant excepted. The court gave the first ruling requested by plaintiff, but refused the others, and ruled that the record was consistent with the assumption of the presence of the debtor in court during the entire hour before making his motion, that it failed to show that the creditor was present in person or by attorney, and failed to show affirmatively a breach of the recognizance, and found for the defendant, after which the case was reported to the Supreme Judicial Court. Judgment for defendant.

Frank...