235 Mass. 104 | Mass. | 1920
The defendant was the surety on a recognizance given by one MacDonald, who was arrested on an execution issued by the Municipal Court of the City of Boston in favor of the plaintiff. The condition of the recognizance was that the debtor, within thirty days from the day of arrest, should “deliver himself up for examination . . . and appear at the time fixed for his examination and from time to time until the same is concluded, and not depart without leave of the magistrate, . . . and abide the final order of the magistrate thereon.” Application was seasonably made in the Municipal Court that the oath for the relief of poor debtors be administered, and an oral examination was held on September 18,1918. In the forenoon of that day the judge made an order refusing the oath to the debtor. The clerk prepared the certificate for the debtor’s commitment and attached it to the execution. Later, on the same day, the judge’s attention was called by the debtor’s counsel to a certain statute; whereupon, the clerk was ordered to remove the certificate from the execution and the case was adjourned to September 19, 1918; and on that day, against the creditor’s objection, the order of September 18 was rescinded and the oath administered to MacDonald. The plaintiff contends that the judge had no authority to change his
The condition of the recognizance was that MacDonald should abide the final order of the magistrate. The order of September 18 was not final. It did not appear that the execution with the certificate attached was returned to the officer or left the custody of the court. There was no final order of the court until September 19, when the oath for the relief of poor debtors was administered and the debtor discharged. The court had the power to reconsider its decision and correct an error of law of its own motion or at the request of the parties. McKinley v. Warren, 218 Mass. 310. Waucantuch Mills v. Magee Carpet Co. 225 Mass. 31. This principle applies to poor debtor proceedings. There was no error of law, therefore, in directing the clerk to remove the certificate from the execution and in ordering the debtor’s discharge. As the conditions of the recognizance were complied with by the debtor, the plaintiff cannot recover.
Russell v. Goodrich, 8 Allen, 150, is not at variance with this decision. In that case the final order was made, refusing the oath. The case was then adjourned to allow the debtor to secure bail. It was decided that the magistrate had no jurisdiction after his final order was made, refusing the oath to the debtor, and the debtor was not bound to attend at the time and place of the adjournment. Fuller v. Meehan, 118 Mass. 135, and Goodall v. Myrick, 111 Mass. 484, relied on by the plaintiff are to be distinguished. They are not in conflict with what is here decided. There was no error of law in refusing the plaintiff’s request.
Order dismissing report affirmed.
