161 Mass. 55 | Mass. | 1894
The first case is a writ of scire facias against the bail of Arthur E. Miller and Fred Miller. The second case is a writ of scire facias against the bail of Arthur E. Miller. The third is the same as the first, and the fourth is the same as the second, but a different question of law is raised in the, third and fourth cases from that raised in the first and second. Arthur E. Miller and Fred Miller were both arrested in a suit against them, and they gave bail, the defendants being their sureties; Arthur E. Miller was also arrested in another suit which was against him alone, and he gave bail, the defendants being his sureties. The plaintiff obtained judgment in these two suits,
Rule 27 of the Superior Court was in force during the pendency of these suits, and is as follows: “ On the first Monday of every month judgment may be entered, in all actions ripe for judgment, under a general order of the court; and the court, or any justice, may at other times order judgment to be entered in any action.” The Superior Court had passed the following general order, which was also in force, viz.: “ To the Clerk of the Superior Court within and for the County of Suffolk.
The contention of the plaintiff is, that by force of the rule of court and of the general order the actions went to judgment on the first Monday of June, 1893. The motion to take off the default had been disallowed on May 18, and although the defendants claimed an appeal from this order, the plaintiff contends that no appeal lay, because it was in the discretion of the justice hearing the motion whether it should be allowed or disallowed, and because the order is not a judgment within the meaning of Pub. Sts. c. 152, § 10. We are not called upon to determine whether the Superior Court or any justice of that court might have ordered final judgment entered in the actions pending the appeal from the order disallowing the motion to take off the default, either on the ground that no appeal lay from such order, or on some other ground. We think that it was not the intention of the rule that the clerk should have any such power. On the face of the record there was an appeal pending which would prevent the entry of judgment. It was not for the clerk to determine whether this was a valid appeal or not. According to the record the actions were not ripe for judgment. No judgment in fact was entered, and without considering whether a judgment may be considered as entered before any record of it has been made, on the ground that under the rules the clerk ought to have entered it, we are of the opinion that on the record as it stood the clerk could not have entered judgment, and that therefore the surrender was in time.
Actions dismissed, and bail discharged.