216 Mass. 242 | Mass. | 1913
One William J. Lena was arrested on an execution in favor of the plaintiff, and entered into the recognizance prescribed by R. L. c. 168, § 30, with the defendants as sureties. At the request of the principal, Lena, the Police Court of Lawrence issued a notice of his desire to take the oath for the relief of poor debtors, which notice was duly served upon the plaintiff and was returnable on the fifteenth day of October, 1909, at ten o’clock A. M.
This is an action upon the recognizance. At the trial in the Superior Court the plaintiff introduced in evidence the record of the Police Court of. Lawrence, of which the part material to the issue before us is as follows: “October 15th, 1909. The debtor and creditor with their counsel were both present in the Court Room during the hour beginning with 10 o’clock A. M. The case was informally called to the attention of the presiding judge about 10 o’clock. The Court was then engaged in the trial of
The burden was on the plaintiff to prove that there had been a breach of the recognizance. As constituting such breach she relied solely on the debtor’s failure to have the Police Court take any action on his application to take the poor debtor’s oath within one hour after ten o’clock a. m., the hour when the notice was returnable, and she contended that the court had no jurisdiction, after the expiration of that hour, to make any order in the case.
It has long been settled that in these poor debtor proceedings the duty is on the debtor to see that a competent magistrate attends at the time and place fixed for his examination; and one hour is allowed for the appearance of both parties after the time mentioned in the notice. If during that hour the magistrate fails to appear, his jurisdiction to act upon the notice is exhausted. Hills v. Jones, 122 Mass. 412. Bliss v. Kershaw, 180 Mass. 99,101. To protect from default the debtor who is not responsible for the absence of the judge the statute permits him to call in another magistrate under R. L. c. 168, § 69, or to issue a new notice to the creditor under § 70. But clearly these provisions are not applicable where the debtor has present, during the time appointed, a magistrate who is competent to act.
In the case at bar the Police Court acquired jurisdiction of the debtor’s application. At the beginning of the hour the case was called to the attention of the judge. He was actually engaged in the trial of other causes, some of which may have been criminal cases of persons in custody, which properly would have prece
We are of opinion that the evidence discloses no default by the judgment debtor. At the time and place appointed for his examination, as well as during the hour that followed and until his case was reached, he was in court ready and willing to submit to inquiry. During the entire time there was present a magistrate who was competent to act, and who acquired jurisdiction of the poor debtor process when bqth parties appeared during the hour. The exact time for proceeding with the hearing, in the methodical conduct of the pending business before the court, necessarily was determined by the judge, and was not within the control of the debtor. The plaintiff and her counsel were present during the entire time, and made no complaint or request with reference to an earlier hearing. No error is shown in the refusal of the judge of the Superior Court to give the rulings requested by the plaintiff, or in his finding for the defendant. Niles v. Hancock, ubi supra. Toll v. Merriam, 11 Allen, 395. Warburton v. Gourse, 193 Mass. 203.
The question of evidence raised by the plaintiff’s exceptions may be disposed of briefly. If the record did not contain all that should have appeared therein, she should have made application to the Police Court to amend it, and could not control it by oral evidence. Tufts v. Hancox, 171 Mass. 148. Bent v. Stone, 184 Mass. 92.
Exceptions overruled.
