Brow v. Norton

Decided January 26, 1897

Massachusetts Supreme Judicial Court · decided 1897-01-26

<p>Statute — Motion to Dismiss — Discontinuance of Action.</p> <p>An order discontinuing an action, on the defendant’s motion, on the ground that the plaintiff attached his property without inserting a declaration and bill of particulars in the writ, and that the plaintiff did not within three days after demand by the defendant furnish him with a copy of the declaration, is within the power of the court, under St. 1894, c. 405; and the filing of an answer in which it is stated that the motion is not waived does not operate as a waiver thereof.</p>

Cited by 1 later decisions — most recently February 1929

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1897-01-26

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Field, C. J.

¶1The only question of law arising on this appeal is whether the order of the Superior Court was within its power, if that court found the facts to be as alleged in the motion. There can be no doubt that St. 1894, c. 405, confers this power on the court. It is contended that the motion was waived by the filing of an answer. It appears that on April 7,1896, which was Tuesday after the first Monday of April, on which, as we infer, the writ was returnable, the motion was filed, and that afterwards on the 5th day of May an answer was filed, in which it was expressly stated that the defendant did not waive the motion. The filing of such an answer was not a waiver of the motion. The order discontinuing the action with costs must be affirmed.

¶2 So ordered.