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Duffee v. Call

Margaret Duffee v. H. M. Call

Duffee v. Call, 123 Mass. 318 (1877)
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Court
Massachusetts Supreme Judicial Court · State Highest Courts
Decided
October 17, 1877
Judges
Gray
Citations
123 Mass. 3181877 Mass. LEXIS 275
Cited by 2
Headnotes
If a writ, duly served upon a person summoned as trustee of the principal defendant, is not entered, and he appears and files a complaint at the first term, he is entitled to judgment for his costs; and his right to file such a complaint is not affected by his having filed an answer.
Summary
Complaint for costs, by a person duly summoned as trustee of Cynthia Hall, named as defendant in a writ sued out by H. M. Call and returnable at October term 1876 of the Superior Court. The trustee appeared and filed an answer on the first day of the term, and afterwards discovered that the writ had not been entered, and thereupon and during the same term filed this complaint. No service was made upon the defendant; but the trustee was first informed of that fact after this complaint had been filed. Allen, J., ruled that the complaint must be dismissed; and the complainant alleged exceptions.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Gray

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Gray, C. J.

If a writ duly served is not entered, the defendant, upon appearing pursuant to the summons served upon him and filing a complaint at the first term, is entitled to judgment for his costs. Gen. Sts. e. 120, § 12; c. 129, § 9. Gilbreth v. Brown, 15 Mass. 178 , 180. Lombard v. Oliver, 5 Gray, 8 . Cardival v. Smith, 109 Mass. 158, 160 . And a person summoned as trustee of the principal defends nt has the like right. Gen. Sts. e. 129, § 9. Brown v. Seymour, 1 Pick. 32 . The filing of a trustee’s answer, in an action which had been discontinued by the plaintiff’s failing to enter it, was a nullity, and did not waive or affect the right of the trustee to file a complaint for costs at the term at which she had been summoned to appear.

Exceptions sustained.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 2 cases

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1884–1885: 11916–1917: 118842026peak 1884 · 1

Relies on it most ⓘ

  1. Johnson v. Reed136 Mass. 421 (1884)
  2. Whiting v. Houghton117 N.E. 825 (Mass. 1917)

Most recent

  1. Whiting v. Houghton117 N.E. 825 (Mass. 1917)
  2. Johnson v. Reed136 Mass. 421 (1884)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Cardival v. Smith, 109 Mass. 158 (1872) 37

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