333 Mass. 551 | Mass. | 1956
The plaintiff, the holder and payee of a promissory note, brought this action of contract against the defendant, the maker of said note, to collect $1,000, the principal of the note, and interest of $174.18. The note
The failure of the judge to pass upon any of the defendant’s requests for rulings was the equivalent of their denial. John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 18. We need not consider the requests separately for the defendant makes the single contention that there was error in the denial of its motion. A motion to dismiss lies if an error of law is shown upon the face of the record. Tyler v. Boot & Shoe Workers Union, 285 Mass. 54, 55. Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167, 169. Chandler v. Dunlop, 311 Mass. 1, 4.
The defendant contends that trustee process was void and beyond the jurisdiction of the court to entertain because the maintenance of an action by a trustee writ with
The defendant would have us read § 42A as meaning that the mere serving of a trustee writ upon one named as trustee in an action for an amount liquidated or ascertainable by calculation, where the ad damnum is unreasonably in excess of that amount together with costs, constitutes a violation of that section. We do not agree. As already shown this section applies only to actual attachments. Its legislative history supports that view. It first appeared in our statutes as St. 1943, c. 234, § 1. The second section of this c. 234 amended G. L. (Ter. Ed.) c. 223, § 114, which then so far as material read as follows: “If an excessive or unreasonable attachment, by trustee process or otherwise, is made on mesne process, the defendant or person whose property has been attached may apply in writing ... to a justice of the court to which such process is returnable, for a reduction of the amount of the attachment or for its discharge .... If, upon a summary hearing of the parties, it is found that the action is one to recover for an amount which is liquidated or ascertainable by calculation, and the attachment is for a larger sum than the amount of the claim and such additional amount as is reasonably necessary to include interest thereon and costs likely to be
The instant case differs from those coming within G. L. (Ter. Ed.) c. 246, § 1, as amended by St. 1943, c. 17, § 1, barring the commencement by trustee process of actions of tort for malicious prosecution, for slander or libel, or for assault and battery. In such cases the court has no jurisdiction even where only one count of several may be for a cause of action of the precluded kind. McDonald v. Green, 176 Mass. 113. Guarino v. Russo, 215 Mass. 83. MacCormac v. Hannan, 248 Mass. 86. Poorvu v. Weisberg, 286 Mass. 526. A. Sandler Co. v. Portland Shoe Manuf. Co. 291 Mass. 326. Neither is it like a case where on appeal from the District Court the ad damnum cannot be raised in the Superior Court beyond the amount of which the District Court then had jurisdiction. Hall v. Hall, 200 Mass. 194.
It is also worth noticing that while St. 1943, c. 234, § 2, amended § 114, that amendment did not affect the power of the court to reduce or discharge an excessive attachment, a power that was originally given to the court when this statute first appeared in St. 1851, c. 233, § 96.
The defendant is not aided by Farber v. Lubin, 327 Mass. 128. A motion to dismiss a trustee process was allowed for failure of the plaintiff to comply with G. L. (Ter. Ed.) c. 246, § 1, as amended by St. 1943, c. 17, § 1, which required the plaintiff to file a bond in commencing an action by trustee process where the ad damnum was over $1,000 except in five enumerated classes of cases. One class was an action
The defendant was not harmed by the action of the judge of his own volition in reducing the ad damnum to $1,500.
Order dismissing report affirmed.