187 Mass. 421 | Mass. | 1905
This cause went to judgment on March 7, 1904, in accordance with the rescript sent down upon the decision reported in 185 Mass. 229. Thereafter steps were taken to tax the plaintiff’s costs, resulting in a taxation in the clerk’s office in the sum of $260.05, which upon appeal was affirmed by a judge of the Superior Court, and from this decision an appeal was taken by the defendant to this court.
The items which the defendant contends are embraced wrongfully in the taxation are of two classes, first, those taxed for officer’s fees for service of the writ by attachment of the defend
1. The defendant contends that the officer’s fees for service by attachment were improperly allowed in the taxation because, first, there never was a valid attachment of goods upon the writ, and next, because if there at first was a good attachment it was made void and the officer rendered a trespasser ab initio because the plaintiff having made application to have the goods sold under the provisions of R. L. c. 167, §§ 82 et seq., the proposed sale thereafter was abandoned and the goods were stored and kept.
The validity of the attachment is to be decided upon this appeal by the statements of the record, and the officer’s return of service is to be taken as true. If false in fact the defendant’s remedy is by an action against him for a false return. Slayton v. Chester, 4 Mass. 478. Bean v. Parker, 17 Mass. 591, 601. Whithead v. Keyes, 8 Allen, 495. McGough v. Wellington, 6 Allen, 505. This doctrine the defendant concedes, but urges that the return contains no sufficient description of the property said to be attached, and that the attachment must be held void for that reason. The return recites that on February 7, 1903, the officer by virtue of the writ “ attached certain goods and chattels in building numbered 9 and 11 Harcourt St., Boston, as the property of the within named defendant Henry Wenz and placed a keeper in charge of the same.” It further states that a summons was served on the same day, and that on February 12, 1903, the plaintiff having made application to have the goods sold the officer caused a schedule of “ said property to be taken for said purpose,” and that on February 21, 1903, by direction of the plaintiff’s attorney he moved and stored as much of the attached property as is described in the schedule, and dissolved his attachment on all the other property attached except the sum of $36 in currency. The schedule referred to in the return is annexed to the writ and is of ninety-five bags of cocoa beans, each bag being described by numbers or marks and weight.
The defendant’s argument is that he had at the building mentioned a candy factory in which was machinery, apparatus and much other personal property besides that mentioned in the schedule; that all this personalty was attached if any, and that the
We do not so think. In Baxter v. Rice, 21 Pick. 197, where the return was merely that the officer had “attached a store of goods, the property of the ” defendants, the action being trespass against the officer and his return not conclusive, the objection being taken that the return contained no sufficient description of the goods, the court said generally that it was important “ that a good degree of exactness and particularity should be observed ” to show the identity of the goods, but that “ from the nature of the subject, it is difficult to lay down a precise general rule.” No opinion was expressed upon the sufficiency of the return in Baxter v. Rice, because the return might still be amended and the cause was continued for that purpose. In Baxter v. Rice, the return stated the property as “ a store of goods, the property of” the defendants. In the' present case the return goes much further. It identifies the goods as being in a designated building, and further states that they are placed in charge of a keeper. From its statements of the officer’s acts subsequent to the time when the attachment was first made the return makes it certain that the ninety-five bags of cocoa beans described in the schedule were articles comprised in the goods originally attached and placed in charge of the keeper. So far as they are concerned the return itself gives of them an exact and particular description.
In this proceeding the return must be taken to be true, and therefore we are to consider that while it states that the officer attached certain specifically described goods he attached also at the same time and place certain other goods of which he gives no detailed description, and no identification save that they were goods of the defendant in a designated building, and that thereafter the officer released from attachment the goods not specifically and particularly described. To hold that such a return made the whole attachment void, would be to impose upon every officer making an attachment of goods or chattels the duty of making at once a detailed schedule of the property attached. Such never has been the practice. Such a requirement would entail great and useless expense, and would be oppressive upon the defendant if not upon both parties. We are of opinion that the return, discloses a valid attachment.
2. The general statutory provision for costs is that “ In civil actions the prevailing party shall recover his costs, except as’
3. After one taxation had been made in the clerk’s office from which both parties appealed to the court, pending those appeals the officer was allowed to amend his return, and thereupon the matter was referred back by the court for further hearing, and the clerk changed his taxation. The, defendant contends here that the reference back to the clerk was wrong, and that the judge should have decided the questions raised by the appeals as the record stood when they were'taken. We think the practice was right. The amendment allowed changed the record on which the taxation was to be made, and to have decided the appeal would have been to pass upon a moot question. However this may have been no exception appears to have been taken at the time to the course pursued by the court, and the question is not open.
Taxation of costs affirmed with costs of the appeal.