Washington Nat. Bank v. Williams

• Citation: 77 N.E. 383,190 Mass. 497
• Parties: WASHINGTON NAT. BANK v. WILLIAMS.
• Decision Date: 01 March 1906
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

190 Mass. 497

77 N.E. 383

WASHINGTON NAT. BANK v. WILLIAMS.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1906

COUNSEL

H. E. Bolles, C. H. Tyler, and B. D. Barker, for plaintiff.

Fred H Williams and Frank M. Copeland, for defendant.

OPINION

HAMMOND J.

This is an action of contract against a surety on a recognizance from Joseph Dews, a poor debtor. It is agreed that the writ was entered, judgment was entered, execution was issued, the judgment debtor was arrested, and the recognizance was given all on the same day. The question is whether the execution was void as having been issued contrary to law. Pub. St 1882, c. 171, § 15 (now Rev. Laws, c. 177, § 16), in force at the time of this execution, provided that no execution should be issued 'within 24 hours of the entry of judgment.' It has been decided, however, that this provision, being for the benefit of the judgment debtor, can be waived by him (188 Mass. 103, 74 N.E. 470); and we are of opinion that the agreement filed in court shows such a waiver.

It is contended that the plaintiff failed to show that the judgment, upon which the execution issued, was duly entered either upon any general order or special order of the court. The court found as a fact that there was no general order but that there was a special order. The defendant contends that the finding that there was a special order was not warranted by the evidence. Upon this matter the evidence was somewhat conflicting. The docket entries contained the following: '1896, August 20. Judgment for plaintiff for $4,174.66 and costs. Execution forthwith.' The original papers, consisting of the original writ, the declaration, the answer, and the agreement for judgment, all being dated August 20, 1896, and all having been entered in court on that day, were before the court. Mr. Bearse, an assistant clerk of the court called by the defendant, testified that he had been connected with the clerk's office ever since 1887; that there was nothing on either the papers or the docket indicating any action by the court; and that 'under the practice of the office if there had been any action on the part of the court, it would have appeared on the docket or on the papers.' Upon cross-examination he testified that he had nothing to do with the docket entries made in this case, nor with the entries upon the original papers; that 'the entries on the docket are made up after the entries on the original papers, and making them up is a mere clerical matter for any one in the office under direction from the person who makes them on the paper, so that the real original entries are made on the papers.' He further testified that until about September 1, 1902, 'it was the custom of the office to enter judgment at once upon the filing of an agreement for immediate judgment signed by the parties.' In rebuttal Mr. Willard, called by the plaintiff, testified that he was the first assistant clerk of the court, had been such for 15 or 20 years, had been one of the clerks for 28 years, and had been in the...