272 Mass. 487 | Mass. | 1930
This action of contract is against three persons alleged to be makers of a promissory note. The defendant Handlin filed an answer setting out general denial and denial of the genuineness of his signature and demand that it be proved at the trial. The defendant Taylor answered by general denial and denial of his signature without demand of proof of its genuineness at the trial. G. L. c. 231, § 29. The plaintiff filed the original note in the clerk’s office and written notices of call upon the defendant Handlin and the defendant Taylor to admit the execution of the note in accordance with G. L. c. 231, § 69, as amended by St. 1926, c. 381, § 1, together with affidavit that copy of the notice had been mailed to each defendant. Neither defendant made an answer within the ten days specified in said § 69 as amended. Thereafter by leave of court each defendant was allowed to file an answer to the notice, the time therefor not having been extended before the expiration of the initial ten days. Finding was made in favor of Handlin and of Taylor after trial on the merits. The decisive question for decision is whether the trial judge could as matter of law allow the defendants to file answer to the call in these circumstances.
The relevant words of said § 69 as amended by said c. 381, § 1, are: “In any action at law ... a party by written notice filed in the clerk’s office and served by copy
It also is provided by said § 69 that the time for filing answer to the matters set forth in the notice shall be within ten days after the filing of the notice or “within such further time as the court may on motion allow.” This provision doubtless was designed to discourage frivolous defences or matters interposed in the pleadings chiefly for delay, and to expedite the conclusion of litigation. It is somewhat drastic in the results thereby visited upon a party who fails
There is nothing in said § 69 as amended to indicate that it is not applicable to cases wherein a party has pleaded denying the genuineness of his signature to a written instrument declared on by his adversary and demanding proof of the same at the trial. G. L. c. 231, § 29. The opening words of- § 69 are comprehensive and inclusive. They permit the filing of the notice in “any action at law.” There is no incompatibility between § 69 and § 29. At a trial on the merits of an action where a party has pleaded under § 29, he might be called as a witness and be com
These interpretations of relevant sections of the statutes as applied to the case at bar show that the plaintiff has not been injuriously affected by the proceedings before the trial judge. G. L. c. 231, § 132. Since the plaintiff did not serve its notice on the defendants as required by § 69 as amended, it was not entitled to the benefits which would have accrued to it through the failure of the two defendants to answer to the notice. In any event it was wholly within the power of the trial judge to extend the time for the answers to the notice and to allow the amendment and to try the merits of the case. Pizer v. Hunt, supra. It is of no consequence whether the reason on which the trial court proceeded was sound; the result will be upheld when not tainted by any harmful error. Randall v. Peerless Motor Car Co. 212 Mass. 352, 384. Reilly v. Selectmen of Blackstone, 266 Mass. 503, 512.
Order dismissing reports affirmed.