Duffee v. Call
Massachusetts Supreme Judicial Court
Complaint for costs, by a person duly summoned as trustee of Cynthia Hall, named as defendant in a writ sued out by H. M. Call and returnable at October term 1876 of the Superior Court. The trustee appeared and filed an answer on the first day of the term, and afterwards discovered that the writ had not been entered, and thereupon and during the same term filed this complaint.
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Complaint for costs, by a person duly summoned as trustee of Cynthia Hall, named as defendant in a writ sued out by H. M. Call and returnable at October term 1876 of the Superior Court. The trustee appeared and filed an answer on the first day of the term, and afterwards discovered that the writ had not been entered, and thereupon and during the same term filed this complaint. No service was made upon the defendant; but the trustee was first informed of that fact after this complaint had been filed. Allen, J., ruled that the complaint must be dismissed; and the complainant alleged exceptions.
1Opinion of the CourtGray, C. J.
If a writ duly served is not entered, the defendant, upon appearing pursuant to the summons served upon him and filing a complaint at the first term, is entitled to judgment for his costs. Gen. Sts. e. 120, § 12; c. 129, § 9. Gilbreth v. Brown, 15 Mass. 178, 180. Lombard v. Oliver, 5 Gray, 8. Cardival v. Smith, 109 Mass. 158, 160. And a person summoned as trustee of the principal defends nt has the like right. Gen. Sts. e. 129, § 9. Brown v. Seymour, 1 Pick. 32. The filing of a trustee’s answer, in an action which had been discontinued by the plaintiff’s failing to enter it, was a nullity,…
2Cases cited1 opinion
- Cardival v. SmithMassachusetts Supreme Judicial Court · 1872
3Cited by2 opinions
- Johnson v. ReedMassachusetts Supreme Judicial Court · 1884
- Whiting v. HoughtonMassachusetts Supreme Judicial Court · 1917