311 Mass. 509 | Mass. | 1942
The defendant Martin, hereinafter referred to as the debtor, was arrested on April 12, 1939, on an execution in favor of the plaintiff, and, on that day, he recognized with the defendant Mede as his surety for his appearance in court. On May 12, 1939, the debtor filed an application to be heard, which was denied on May 18, 1939. The foregoing appears as of record. This is an action of contract to recover on the recognizance, the writ being dated May 16, 1939. The trial judge denied certain requests of the defendants for rulings and directed the jury, subject to the defendants’ exception, to return a verdict for the plaintiff in the penal sum of the recognizance.
General Laws (Ter. Ed.) c. 224, § 6, provides, among other things, that a debtor, arrested on execution, shall be allowed a reasonable time to procure sureties for his recognizance, conditioned that he will have a time and place appointed for his examination before some court having jurisdiction, which time shall be within thirty days after the time of his arrest, giving notice of the time and place thereof as provided in said chapter. The only points argued by the defendants in support of their exception to the direction of the verdict are that the recognizance was not signed by them, and that this action was prematurely brought. This last contention will be dealt with hereinafter.
A recognizance is an obligation of record, entered into before a court or magistrate duly authorized for that purpose, with a condition to do some act required by law, which is therein specified. It constitutes a contract. Warner v. Howard, 121 Mass. 82, 84. National Surety Co. v. Nazzaro, 233 Mass. 74, 76. The act of recognizing is performed by assenting to the words of the magistrate. Martin v. Campbell, 120 Mass. 126, 128, 129. The proceeding is a familiar one in the courts, and there is no ground for the contention, even by implication, that a recognizance must be signed.
The defendants having entered into the recognizance (see
There was ho reversible error in the denial of the defendants’ sixth request, that the debtor, in surrendering himself and making his application, need not be in the actual presence of the magistrate or judge, it being sufficient if the latter is at hand and is readily accessible for the transaction of such business as may be presented to him. (See McKeon v. Briggs, 233 Mass. 99.) The circumstances of the McKeon case, from which this request was evidently taken, were very different from those in the case at bar and the request was inapplicable to the evidence.
There was no error in the denial of the defendants’ seventh request, that the form of the notice is a matter to be determined by the court and not by the debtor. It does not appear that any proper notice ever issued. The debtor took no proper steps to comply with the provisions of the recognizance as to notice, and, for that matter, the proceedings had not advanced to the point where notice could issue, inasmuch as the debtor had not had any time and place appointed for his examination. The defendants’ eighth request was that if the court erroneously instructs the debtor who has presented himself for examination within thirty days, as required by the “bond,” the debtor
The defendants’ fourteenth and fifteenth requests are, in substance, that the presence in court of the plaintiff’s attorney on May 18, 1939, at the hearing on the debtor’s application for the appointment of the time and place for his examination was a waiver of “any defective notice” and prevents the plaintiff from now claiming a breach of the conditions of the recognizance. We are of opinion that the court had no jurisdiction on that date. As already appears, the debtor was required by the recognizance to have a time and place appointed for his examination, which time had to be within thirty days after the time of his arrest. This he did not do. The duty imposed upon the debtor is imperative, the language of the requirement is plain and unmistakable, and the course of procedure under it is simple and certain. It is unnecessary to determine at what precise time the court acquires jurisdiction in a proceeding of this character (see Barnes v. Ladd, 130 Mass. 557, 560; Henderson v. Parsons, 211 Mass. 69, 71; H. B. Smith Co. v. Judge of the Third District Court of Eastern Middlesex, 246 Mass. 190), inasmuch as we are of opinion that there was no jurisdiction on May 18, 1939. See Giantsi v. Christopher, 277 Mass. 47, and cases cited at page 50. Waiver by the parties cannot confer jurisdiction over a cause where none exists. Mueller v. Commissioner of Public Health, 307 Mass. 270, 273, and cases cited. The case at bar is distinguishable from Mount Washington Class Works v. Allen, 121 Mass. 283, and Sturman v. McCarthy, 232 Mass. 44.
What has been said disposes of the defendants’ contention that the writ was prematurely brought. Prior to May
We have considered all questions that have been argued by the defendants and are of opinion that the verdict was rightly ordered for the plaintiff. See in this connection G. L. (Ter. Ed.) c. 224, § 8; Griffin v. Betts, 182 Mass. 323, 325; American Stable Co. v. Clarke, 221 Mass. 271, 272; National Surety Co. v. Reed, 262 Mass. 372, 374, 375.
Exceptions overruled.