188 Mass. 103 | Mass. | 1905
This is an action of contract to recover from the defendant as surety the penal sum of a poor debtor’s recognizance. The defence is that the execution on which the principal was arrested is void because issued and served within twenty-four hours after entry of judgment. Under Rule 25 of the Superior Court judgment may be entered on the first Monday of. each month in all cases then ripe for judgment, “and the court, or any justice', may at other times order judgment to be entered in any action.” Pub. Sts. c. 171, § 1. St. 1885, c. 384, §!2.
The judgment on which the execution issued was not entered under the general order, and the clerk as a ministerial officer had no authority to make the entry without the sanction of the court.
It may be assumed that after the agreement of the parties had been made and filed an order was passed directing the entry of final judgment in favor of the plaintiff for the amount of its claim and costs.
An execution would follow as of course to enforce the judgment without further action by the court. But by our laws for more than a century it has been provided that no original execution shall be issued within twenty-four hours after judgment, nor after one year has expired “ after the party is entitled to
If by a proper agreement of the parties it lawfully can be ordered by the court to issue before, in the absence of such direction no statutory authority is given the clerk in his discretion to determine judicially whether any case is thus placed without the statute, and in this case it further may be assumed that an order to issue a writ of execution accompanied the direction to enter judgment. See Vose v. Deane, 7 Mass. 280, 283.
It must be considered as settled that the invalidity of the writ may be shown and determined in a collateral suit. In a writ of entry to recover land set off to the demandant on an execution that had been issued and levied within twenty-four hours after rendition of judgment, it was held that it was open to the tenant to show these facts in bar of the action and that the execution was void. Penniman v. Cole, 8 Met. 496. See also Briggs v. Wardwell, 10 Mass. 356; Fall River v. Riley, 140 Mass. 488, 489. Although elsewhere there is authority that an execution erroneously issued cannot be attacked collaterally any more than an erroneous judgment, but the remedy is by a proceeding directly instituted in the case itself tp have it set aside. Wilkinson’s appeal, 65 Penn. St. 189. Bacon v. Cropsey, 3 Seld. 195, 199.
The entry of judgment, issuing of execution, and arrest of the defendant in the case before us all took place on the same day, and if the proceedings under the execution are void, the arrest was illegal, and the defendant cannot be held on his recognizance. Penniman v. Cole, ubi supra. Smith v. Bean, 130 Mass. 298. Newmarket National Bank v. Cram, 131 Mass. 204. Atwood v. Wheeler, 149 Mass. 96.
It is conceded by the plaintiff that if execution had issued without the defendant’s assent it would have been a nullity. Briggs v. Wardwell and Penniman v. Cole, ubi supra.
But it is claimed that the debtor could waive the statutory provision made for his benefit, and if he properly did so then the execution was valid.
The case presented therefore is not one where an execution prematurely issued can be served properly after the limitation
In Penniman v. Cole, ubi supra, it was said by Hubbard, J., “ The object of the provision we take to be this; to give a judgment debtor opportunity to examine into the correctness of the judgment, the accuracy of the calculation, where a computation is to be made, and to ascertain if the costs are properly taxed. . . . The time is given for the benefit of the judgment debtor . . . to enable him to ascertain that the judgment is correct, before execution goes forth against him.”
If, however, the judgment debtor for reasons entirely satisfactory to him is content to waive the provision, and assents, the reason for the rule ceases, unless there is some requirement of public policy which should keep it in force.
It has been said that where laws are enacted on grounds of general policy their uniform application for the protection of all citizens alike is desirable, and an agreement to waive their provisions is generally declared invalid, but where they are designed solely for the protection of rights of private property, a party who may be affected can consent to a course of action, which if taken against his will, would not be valid. Cooley, Const. Lim. (7th ed.) 250, 251. Desseau v. Holmes, 187 Mass. 486. Green v. Blunt, 59 Iowa, 79.
This principle has been recognized and applied in the case of a debtor, who it was held could waive his right to the statutory exemption of property provided by. Gen. Sts. c. 123, § 32, which otherwise was not liable to be taken on execution. Dow v. Cheney, 103 Mass. 181. See also Pub. Sts. c. 151, § 22, where express provision is made for waiver of appeal after a final decree in equity, and property of a defendant held under Pub. Sts. c. 161, § 53, to satisfy the decree may be at once levied upon.
The section of the statute under consideration being for his benefit, the judgment debtor could waive its provisions by a
Whether he effectually did so depends upon the construction of the written agreement, which is for the court. Pratt v. Langdon, 12 Allen, 544.
No claim is made that it was procured by fraud or mistake, and an examination of its terms discloses no latent ambiguity, for it clearly provides that the entering of judgment, and issuing of execution thereon, to which the debtor agrees, are to be deemed concurrent acts straightway to be performed. Having been duly made and filed, and proper proceedings thereunder having been taken by the court, the execution was issued lawfully, the arrest which followed also was lawful, and the recognizance entered into by the defendant was valid.
The third ruling requested “ that the execution against Joseph Dews issued on August 20, 1896, is a valid execution, the arrest thereon legal, and the recognizance valid and binding on the defendant ” should have been given, and the ruling “ that upon the facts agreed, and those which are agreed if material, the action cannot be maintained” was wrong.
Hxeeptions sustained.
