Fogel v. Dussault, 141 Mass. 154

Fogel v. Dussault

141 Mass. 154 | Mass. | 1886

Devers, J.

Parties are permitted to answer jointly when they make the same defence. Pub. Sts. c. 167, § 16. The answer of the defendants was joint, and consisted only of a general denial. The declaration alleged a final judgment for the plaintiff against the principal defendant, at a particular date, by a district court in an action originally brought there. This denial was a -defence, if successfully maintained, which was available to all the defendants. If, upon separate answers, the defendant sureties might, by plea and proof, have availed themselves of any invalidity in the judgment, they could not do so under the *157answer, which, as it stood, simply denied the existence of the judgment.

So far as the principal defendant is concerned, it is established that the judgment of a domestic court of record, proceeding according to the course of the common law, is conclusive evidence of all the facts decided in subsequent suits between the same parties ; and that the only remedy of a party who has been injured by a judgment erroneously rendered is by review, or by proceeding to reverse the same upon a writ of error. The party plaintiff is not allowed to treat a judgment lawfully obtained by him from a court of competent jurisdiction as a nullity, or to proceed upon his original demand as if it had not been rendered. While it exists, he can only proceed by suit on his judgment or levy of execution. These principles apply to judgments rendered by courts such as the Second District Court of Bristol. Loring v. Bridge, 9 Mass. 124. Cook v. Darling, 18 Pick. 393. Hendrick v. Whittemore, 105 Mass. 23. Wood v. Mann, 125 Mass. 319.

It is the contention of the defendants, that the case at bar is not governed by those principles which apply when a judgment is erroneously rendered by a court having competent jurisdiction of the subject matter ; but that the appeal shown by the record to have been taken by the principal defendant vacated the judgment, thus rendering it wholly inoperative, and that, the judgment having been thus vacated, the only remedy of the plaintiff was to enter a complaint for the affirmance thereof. Pub. Sts. c. 155, § 34.

The principal defendant claimed an appeal from the judgment of the district court, and was ordered to file a bond with surety to prosecute his appeal. It is contended by the defendants, that such order was wholly unauthorized; that, the debtor having given bond to dissolve the attachment of his property, which had been filed at the entry of the original action, such bond was unnecessary; and that, without it, the appeal was completed and the judgment vacated.

The Pub. Sts. c. 155, § 29, provide that an appeal from the judgment of a trial justice shall not be allowed, except upon recognizing to the adverse party with surety to prosecute the appeal, and to pay all subsequent costs. Section 30 provides *158that the party appealing may, in lieu of entering into a recognizance, deposit a sum of money as security for the prosecution of the appeal and the payment of costs. Section 33 provides that, when an appeal is claimed, no recognizance or deposit shall be required for the allowance of such appeal, when the defendant shall have “ given a bond to dissolve the attachment made in such case as provided by law.” These provisions as to appeals from trial justices (Pub. Sts. e. 154, § 39,) applied to district courts before the St. of 1882, e. 95.

By the Pub. Sts. e. 154, § 52, it was provided that in the municipal courts, “ instead of entering into a recognizance, the party appealing in civil proceedings shall file a bond with surety or sureties to the adverse party within the same time, upon the same conditions, and with the same powers in the judge and clerk, as are provided in respect to recognizances in police and district courts.” By the St. of 1882, c. 95, the provisions of the Pub. Sts. c. 154, § 52, relating to the filing of bonds by parties appealing from the municipal courts of the city of Boston were made applicable to district courts.

It is therefore urged, that, as no recognizance was required on appeal from a district court where a bond to dissolve an attachment had been given, and as the St. of 1882, e. 95, only replaces the recognizance by a bond in cases where the former was required, the bond to dissolve the attachment has the same effect now as before, and obviates the necessity of any additional bond, recognizance, or deposit, on an appeal from a district court to the Superior Court.

If we adopt this argument, it will be necessary to inquire whether the debtor had given a bond to dissolve the attachment such as is provided by law. The plaintiff urged that the bond in suit was not such a bond as is required in such cases, and could not therefore avoid the requirement of furnishing other-sureties, or filing a bond, in case the debtor wished to avail himself of his right to appeal.

The Pub. Sts. o. 161, § 122, provide that any party whose goods are attached may dissolve the attachment by giving bond with sufficient sureties, to be approved by the plaintiff or his attorney in writing, or by a master in chancery, justice of a court of record, &c., with condition to pay to the plaintiff “ the *159amount, if any, that he may recover within thirty days after the final judgment in such action,” and also the amount of any special judgment which might be entered under c. 171, providing for special judgments against the property of insolvents. This bond is to be “filed by the defendant with the clerk of the court to which the writ is returnable, or in which it is pending, within ten days after its approval by the plaintiff or his attorney, or by the magistrate; and the attachment shall not be dissolved until the bond is so filed.” § 125. But while the bond in suit contains the same condition as that contemplated by the statute, it was not approved, nor were the same proceedings had as are provided for therein. The attachment was not dissolved upon the filing by the defendant of a bond approved either in writing by the plaintiff, or in any other of the modes prescribed. Upon the delivery of the bond in suit to the plaintiff, who himself subsequently filed it in court on the return day of the writ, he released the property from the attachment. The bond had not the approval required by the statute, nor was the attachment dissolved in the mode therein provided. While, in view of the fact that, on receiving it, the plaintiff released the property attached, it was available to him as a bond at common law, it was not the statutory bond provided for by the Pub. Sts. c. 161, §§ 122, 125. Its existence could not, therefore, relieve the principal defendant from the duty of filing a bond with surety before his appeal was allowed. Having failed to do this within the time ordered by the district court, the judgment of that court was not vacated, but remains in full force.

Exceptions overruled.