206 Mass. 39 | Mass. | 1910
The plaintiffs, having a substantial claim against the defendant Wallace upon certain promissory notes, brought this suit against him in the Superior Court, and attached generally his interest in any real estate in the county
On February 16, 1909, he appeared specially, representing that he did it only for this purpose, and moved that the default be removed. Rule 43 of the Superior Court is as fol
On February 23 the defendant filed an affidavit in compliance with this rule. He set up that he had a good defense to the action, in that the same plaintiffs had brought a suit against him in New Hampshire upon the same notes, and another suit in New York upon them, and that certain of the notes were without consideration and void, and in the nature of penalties. In stating his defense in the affidavit, he did not refer to want of jurisdiction, although he had stated in an early part of the affidavit the facts relative to the service, and had said, as an excuse for his failure to appear seasonably, that he had been told that the court had no jurisdiction.
On February 27, upon the motion and affidavit, the court made an order, after a hearing, reciting a waiver by the plaintiffs of their claim for a trial by jury, and allowing them to amend their writ on or before March 1, and allowing the defendant to file his answer on or before March 6, and setting down and assigning the action for hearing in a session without a jury, March 11. Thereupon the plaintiffs amended their declaration, upon a motion allowed March 1, striking out two counts and changing another count. The defendant then filed his answer
Thereupon the plaintiffs, on March 11, filed a motion that paper number thirteen be stricken from the files, as improperly filed after the filing of the affidavit of merits upon which the default was removed. This motion was allowed on March 13.
This being the state of the record, the defendant moved for leave to amend the answer in general denial by adding an averment of payment of the notes pursuant to an agreement in writing, a copy of which he annexed. This motion was allowed on March 18, 1909.
The defendant’s affidavit of merits, made under the rule, indicated an intention to submit to the jurisdiction of the court for a trial of the case upon the defenses stated in it, which did not include, want of jurisdiction. The order of the court upon the motion was an order permitting this, and providing for an amendment of the declaration and the filing of an answer, and setting the case down for a hearing by assignment at a stated time. This purported to be for a hearing upon the merits, on the issues presented by the declaration and the answer, and the default was taken off only by this order made for this purpose.
The second paper of the defendant’s answer, filed at the same time with the first paper, raised issues upon the merits by its general denial. It indicates that he correctly understood the order removing the default for. the purpose of a hearing on the merits. Then, after, the paper numbered thirteen had been stricken from the files, the defendant further amended his answer by setting up payment. It is a familiar rule that, if one appears generally in a case, or asks the court to do any
The plaintiffs then, on May 21, moved to amend their writ and declaration from an action of contract into a bill in equity, and to make Frank Watson, in whose name the title to the attached land stood, a party defendant. The claim in equity was made under the R. L. c. 159, § 3, cl. 8, which is to reach and apply property conveyed by a debtor or held for his benefit in fraud of his creditors. It was in the power of the court to allow the amendment. R. L. c. 173, § 52; c. 159, § 6. The facts well warranted a finding that the cause of action stated in the bill in equity was the same for which the action was brought, and the court might find that the amendment was necessary to enable the plaintiffs to sustain the suit in the most effectual way for the cause for which it was intended to be brought. By this amendment the holder of the title was brought into court, so that the rights of all parties could be plainly determined in a single suit. The order allowing this motion is affirmed.
The defendant Wallace then filed a demurrer to the bill, and after the demurrer had been overruled, appealed from the order
Finally, the defendant Wallace appealed from the decree for the plaintiffs. No argument has been addressed to us touching the form of the decree, and the defendant, throughout the case, has relied upon objections to the jurisdiction which we have already considered. Upon the findings of the court that the real estate was purchased and paid for by the defendant Wallace, while the record title was conveyed to the defendant Watson, with intent to defeat, delay and defraud the creditors of Wallace, and that this record title remained in Watson until the commencement of the suit and the making of the attachment, it was proper to provide for a levy of execution upon the property, if the defendant Wallace failed to make the payment ordered within the thirty days prescribed therefor.
Decree affirmed with costs.