Nims v. Spurr

138 Mass. 209 | Mass. | 1885

W. Allen, J.

To maintain this action, it must appear that the plaintiff had an interest in the contract, as attaching officer, at the time the demand was made. If the right of the attaching creditor under the attachment had ended, so that it could not call upon the officer to enforce such right, the plaintiff would have had no interest in the property or. in the contract to deliver sufficient to sustain the action. Butterfield v. Converse, 10 Cush. 317. Stackpole v. Hilton, 121 Mass. 449. Shumway v. Carpenter, 13 Allen, 68.

The defendant contends that no valid execution had been taken out by the creditor and placed in the hands of the officer when the demand was made; and that none has been taken out since the demand; and that therefore the creditor has lost its rights under the attachment, and the plaintiff is under no liability to it. The execution was issued on the 8th day of June; the final decree, as shown by the amended record, was entered on May 12. The defendants contend that the statutes of this Commonwealth, Pub. Sts. c. 151, § 22, and c. 161, § 53, giving a right of appeal in equity cases from the decree of a single judge to the full court for thirty days after the decree, and providing that, in suits where an appeal may be taken from the decree of a single judge, execution shall not issue within thirty days from the date of the decree, and that the attachment in the suit shall be held for thirty days after the right of appeal expires, apply to cases in the United States courts, carried there by removal from the state courts, and extend the time within which an execution cannot issue to thirty days after the decree. It is very clear that the statutes of this Commonwealth cannot give a right of appeal from a decree of a United States court; and that such right of appeal, and the time within which it may be exercised, must depend upon the laws of the United States.

It is further contended by the defendants, that the execution was void; and that, in fact, no execution was ever issued on the decree. The execution recited that, at a certain term of the court, and, under a videlicet, on April 12, 1881, judgment was recovered; and in this respect it follows the record as originally made. In that, April was written instead of May by a clerical error. But the execution recited correctly the term of court at which the judgment was rendered, and conformed to the record in its recital of the day on which judgment was entered. It was issued after the decree was entered, and when the plaintiff was entitled to an execution under the decree as actually made, as well as under it as recorded. The execution must conform to the record of the judgment, and the record was correctly described in it. If it had recited a judgment rendered on May 12, it would have appeared to have been issued upon a different judgment than that shown by the record, at least until that should have been amended. The objection that the record and the execution, showing that the judgment was rendered on April 12, showed that the term had expired before the execution was issued, is answered by the amendment of the record, so that it showed that the judgment described in it as it stood from May 12 to July 3, and in an execution issued upon it during that time, as a judgment of April 12, was the judgment of May 12. What effect the amendment would have upon rights acquired upon the faith of the false record, or whether the amendment would have been allowed had it not appeared that there were no such rights to be affected, need not be considered. The parties acted on the truth, that the judgment was rendered on May 12, and that the execution was issued on that judgment; the original record with the amendment shows the truth, and also that the judgment was properly described in the execution as rendered on April 12.

The fact that the special precept on which the attachment was made was not returned into court until after the return day, and after the removal of the action to the United States court, would not dissolve the attachment. The precept was returnable at the April term of the court, on the first day of the term. The suit must have been pending before the precept could have been issued. The record of the issuing and return of the precept would be part of the record of the suit for that term. The return of the precept was a part of the record, and necessary to complete it, and might be made at any time during the term. For that purpose the term would be considered as one day, and a return filed at any time during the term would be sufficient. Judgment for the plaintiff.