Duffee v. Call

Decided October 17, 1877

Massachusetts Supreme Judicial Court · decided 1877-10-17

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.

Cited by 2 later decisions — most recently November 1917

2 state decisions

Relies on Cardival v. Smith · Gilbreth v. Brown

Good law ✅— No negative treatment on recordhow we know

Decided 1877-10-17

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Gray, C. J.

¶1If 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.

¶2Exceptions sustained.