271 Mass. 51 | Mass. | 1930
This is an action of contract brought in the district court on a bond, on which one Theodores Theodoropoulos was principal, and the defendants and another, sureties, to dissolve an attachment made in an action brought by the plaintiff against said Theodoropoulos. The defendants set up in their answer accord and satisfaction, release under seal, and fraud. The trial judge found for the defendants. There was a report to the Appellate Division which was dismissed, and the plaintiff appealed.
The trial judge found “that on or about August 14, 1925, the plaintiff brought [an] action against . . . Theodoropoulos by a writ returnable to the Superior Court . . .' , and caused an attachment to be made by virtue thereof on certain real estate . . . ; that on or about August 18, 1925, said Theodoropoulos as principal and the defendants together with Nicholas Cazanas as sureties executed a bond in common form ... to dissolve said attachment . . . ; that later, on October 3, 1927, the plaintiff . . . recovered judgment by default . . . ; [and] that the defendants, though thereunto requested, have failed ... to satisfy said judgment or any part thereof. ...” The bond was joint and several. It was conditioned upon payment of final judgment or a special judgment under G. L. c. 235, § 25. See G. L. c. 223, § 120.
There was “evidence, . . . admitted against the objection of the plaintiff, . . . tending to show and the court found, that on or about January 30, 1926, at a time when said action . . . was pending . . . and subsequent to the giving of said bond . . . , the sum of $200 was paid and a credit of $50 on account of his indebtedness to . . . [the defendant] Demoulas was given to . . . [the plaintiff] and were accepted by him in full payment'and satisfaction of the amount which he was seeking to recover in his said action . . . ; that this payment was made as a result of a compromise agreement to which the defendants in the present case, their cosurety, . . . the principal on said bond, and . . . the plaintiff . . . were parties; that at the time of such
The plaintiff requested rulings that (1) upon all the evidence the plaintiff is entitled to recover, and (2) upon all the evidence there is no defence to this cause of action, which were refused by the trial judge. A third ruling requested by the plaintiff, that “The judgment of the Superior Court is binding and cannot be attacked collaterally in this court” was given in the following modified form: “The judgment of the Superior Court, in the absence of fraud or collusion, is binding and cannot be attacked collaterally in this court.”
The evidence offered, which the trial judge accepted as true, showed that the defendants’ obligations on the bond had been discharged by accord and satisfaction, and release under seal. It came within the terms of the defendants’ answer. The plaintiff contends, however, that this evidence was inadmissible because it impeached collaterally the judgment in the Superior Court for the plaintiff against Theodoropoulos. This contention is unsound. It is true that in the absence of fraud or collusion a judgment against a defendant, by default or otherwise, in an action in which he has given bond to dissolve an attachment is conclusive
Order dismissing report affirmed.