Dindio v. Meshaka

| Mass. | Mar 9, 1931

Rtjgg, C.J.

This is an action of contract to recover for work and labor performed. The description in the writ as originally framed of the only defendant against whom a finding was made is “George N. Meshaka, also known as N. N. Meshaka also known as Nagee N. Meshaka.” The defendants appeared and answered generally. No plea in abatement was filed. The individual for whom the plaintiff testified that he performed the labor was in court at the trial on the merits and was identified by the plaintiff. He was called as a witness by the plaintiff for cross-examination under the statute. (G. L. c. 233, § 22.) He testified that he was the person for whom the plaintiff performed labor as alleged in his declaration. He testified that his name was Najeeb N. Meshaka, and he is so described in the report. The finding was for the plaintiff. The defendant filed a motion for a new trial on several grounds, one of which was that George N. Meshaka was a different person from N. N. Meshaka who did business with the plaintiff. Evidence was heard upon this motion. The trial judge found as a fact that the person described in the writ as defendant under the several aliases was the person called by the plaintiff as a witness for cross-examination, was the person upon whom the writ was served and was the person against whom the finding of the court was made. The motion for a new trial was denied.

It is too plain for discussion that in view of these findings there was no error of law in the action of the trial judge. If the person upon whom the writ was served thought'he was misdescribed in the writ, his remedy was by a plea in abatement.- Advantage of such a matter cannot be taken after a general appearance. Langmaid v. Puffer, 7 Gray, 378. White v. E. T. Slattery Co. 236 Mass. 28" court="Mass." date_filed="1920-05-20" href="https://app.midpage.ai/document/white-v-e-t-slattery-co-6435140?utm_source=webapp" opinion_id="6435140">236 Mass. 28, 31 and cases there collected.

Moreover, the plaintiff was rightly allowed after the trial on the merits to amend his writ by adding to the description of the defendant, as another alias, the name given by the witness who admitted in testimony that he employed the plaintiff and upon whom, as found by the trial judge, service of the writ was made.

Judgment could properly be rendered against one of two or more defendants. G. L. c. 235, § 6.

Amendment to the declaration was rightly permitted in order to enable the pleadings of the plaintiff to conform to the amount found by -the trial judge to be due to him from the defendant. Pizer v. Hunt, 253 Mass. 321" court="Mass." date_filed="1925-09-18" href="https://app.midpage.ai/document/pizer-v-hunt-6437174?utm_source=webapp" opinion_id="6437174">253 Mass. 321, 331.

There was no error in the denial of all the requests of the defendant for instructions.

No genuine question of law is raised on this record. The case is governed by elementary principles. The appeal appears to be frivolous and immaterial. G. L. c. 211, § 10.

Order dismissing report affirmed with double costs.