Warburton v. Gourse

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

193 Mass. 203

79 N.E. 270

WARBURTON v. GOURSE.

Supreme Judicial Court of Massachusetts, Bristol.

November 27, 1906

COUNSEL

Frank A. Pease, for plaintiff.

Frank Waserman, for defendant.

OPINION

BRALEY J.

It is not uncommon in practice in an action pending in a district municipal, or police court for a defendant to consent to the entry of a default, but he is not thereby estopped from taking and entering an appeal from the judgment, and the motion of the plaintiff to dismiss for want of jurisdiction was properly denied. Preston v. Henshaw, 191 Mass 34, 77 N.E. 1153. The defendant's principal having been arrested on an execution in favor of the plaintiff entered into the recognizance provided by Rev. Laws, c. 168, § 30 and duly made application to take the oath for the relief of poor debtors. A notice of the time and place appointed for the examination having been served, the only question is whether the debtor made default at the last continuance thereby causing a breach of the recognizance. The burden of proving a breach rested upon the plaintiff, and the only evidence offered was a record the material portions of which appear in the report. Blake v. Mahan, 2 Allen (Mass.) 75; Toll v. Merriam, 11 Allen (Mass.) 395, 397. This brief memorandum summarizing the proceedings is more in the nature of docket entries than of a formal record, which apparently has not been made, but as these minutes contain a statement of what was done, until extended they may be considered as constituting the record itself. See Central Bridge Corporation v. Lowell, 15 Gray (Mass.) 106, 122; McGrath v. Seagrave, 2 Allen (Mass.) 443, 444, 79 Am. Dec. 797. Although meager this record must be taken as true, and cannot be enlarged or diminished by parol evidence, for if incorrect it can only be corrected by an amendment allowed by the court or magistrate of whose judicial action it purports to be a transcript. May v. Hammond, 146 Mass. 439, 441, 15 N.E. 925; Bent v. Stone, 184 Mass. 92, 95, 68 N.E. 46. It appears that upon the return of the citation an examination was begun which was adjourned to a subsequent date, and then was further continued to a definite hour. The breach, if any, occurred at the last continuance, when as the plaintiff claims no judicial action was taken until an hour had expired from the time fixed. Phelps v. Davis, 6 Allen (Mass.) 287. It was the duty of the debtor to have a magistrate present who was competent to act, and to submit himself for examination by the creditor within this period. Hooper v. Cox, 117 Mass. 1; Hills v. Jones, 122 Mass. 412; Chesebro v. Barme, 163 Mass. 79, 84, 39 N.E. 1033; Damon v. Carrol, 163 Mass. 404, 410, 40 N.E. 185. When the citation was returned it plainly appears that a hearing was begun which implies that the creditor was present opposing the debtor's discharge, and commenced an examination, which probably for the convenience of the parties was continued from time to time. These brief recitals are sufficient to set forth in outline the history of connected acts in a judicial inquiry, and it may be presumed that throughout the hearing the standing justice of the court was present. Stack v. O'Brien, 157 Mass. 374, 32 N.E. 351; Adams v. Pierce, 177 Mass. 206, 207, 58 N.E. 591; Bliss v. Kershaw, 180 Mass. 99, 103, 61 N.E. 823; Bent v. Stone, ubi supra. The plaintiff must prove that being present himself and ready to proceed the debtor was absent, and for this purpose he relies upon the recitals that 'nothing was done in said proceedings between the hours of 9 and 10 o'clock a. m. At 2 minutes past 10 o'clock a. m. * * * the debtor * * * first called the court's attention to his presence in court. * * *' That something is lacking to make this record full and complete is manifest, but the citation was issued from the Second district court of Bristol, attested by the standing justice. By St. 1874, p. 200, c. 293, § 1, this court was established, and by Rev. Laws, c. 160, § 39, is required to be always open for the...