Whiting v. Houghton

• Decision Date: 27 November 1917
• Citation: 228 Mass. 429,117 N.E. 825
• Parties: WHITING v. HOUGHTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 429

117 N.E. 825

WHITING

v.HOUGHTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 27, 1917.

Exception from Superior Court, Middlesex County; William C. Wait, Judge.

Complaint for costs upon nonentry of a writ in trustee process by Edward C. Whiting against Edward R. Houghton, executor. Wait, J., in the superior court ordered the complaint to be dismissed on the ground that the court, as matter of law, and no power to award costs to one named in a writ not entered, and plaintiff alleged exceptions. Exceptions overruled.

Harold S. Davis, of Boston, and Richard W. Baker, of South Lincoln, for complainant.

PIERCE, J.

This is a complaint for costs by Edward C. Whiting duly summoned as trustee of Lillian A. Daly, named as defendant in a writ sued out by Edward R. Houghton and returnable on the first Monday of January, 1917. The writ was duly returned to court but the plaintiff neglected to enter it. The trustee did not appear and answer. The present complaint was filed prior to the next return day, and after hearing was dismissed by a judge of the superior court.

It is settled by Duffee v. Call, 123 Mass. 318, and Dudley v. Keith, 153 Mass. 104, 26 N. E. 442, that a person duly summoned as trustee of the principal defendant in a writ purchased and served between the enactment of St. 1852, c. 312, § 9, and R. L. c. 173, § 11, was by the law then in force entitled to his costs if the writ was not entered at the return day, upon appearing pursuant to the summons served upon him and filing a complaint before the next succeeding return day.

Before St. 1851, c. 233, § 7, and St. 1852, c. 312, § 7, which provided that ‘in actions of contract and actions of tort the writ need not contain any declaration, nor any description of the cause of action other than the name of the form of action in which it is intended to declare,’ the declaration was a part and a necessary part of the writ; and a plea in abatement might conclude ‘with a prayer of judgment of the writ although the fault is not in that part which is given in the statute but in the declaration.’ Ilsley v. Stubbs, 5 Mass. 280.

In Brigham v. Este, 2 Pick. 420, which ordered to abate a writ which contained no count or declaration, Parker, C. J., said:

‘The writ when served, must be returned into the court by the officer who makes the service. * * * If a writ containing no count, nor any cause of action, should be so returned, and the defendant should not appear, no judgment can be rendered; for the court in such case are to take the declaration for true, and render judgment according to it; but in such case they have nothing to proceed upon, and the writ must therefore be a nullity.’

In Gilbreth v. Brown, 15 Mass. 178, a writ was served, the action was duly entered, and stood continued for several terms, when the plaintiff discovering that he could not proceed in his action by reason of the sheriff's neglect in not making return of the writ, moved to withdraw the action from the docket, which was allowed. Wilde, J., in delivering the opinion of the court, said that this act of the plaintiff was a discontinuance of the suit according to the intendment of St. 1784, c. 28, § 9, which reads:

‘When any plaintiff shall, in any stage of his action become non suit, or discontinue his suit, the defendant shall recover his cost against him, and that in all actions * * * the party prevailing shall be entitled to his legal costs against the other’

-and also said, in illustration:

‘If the plaintiff had failed to enter his action, the defendant, on complaint, would have been entitled to costs.’

As regards the right of a trustee in trustee process, before the statute of 1852, supra, to a judgment for costs when the creditor shall become non suit or discontinue his action, ‘the court observed’ in Cleveland v. Clap, 5 Mass. 207, ‘that the costs to be taxed for or against trustees must depend on the construction of the statute of 1794, c. 65, commonly called the trustee act.’ The part of that statute applicable to the subject matter of discussion is section 4, which reads:

‘* * * Where the plaintiff doth not support his action against the principal, and judgment shall be rendered that he take nothing by his writ, the court shall award costs against him, as well in favor of the principal as in favor of such of the persons summoned...