Warburton v. Gourse

Braley, J. It is not uncommon in practice in an action pending in a district, municipal or police court for a defendant to consent to the entry of a default, but he is not thereby estopped from taking and entering an appeal from the judgment, and the motion of the plaintiff to dismiss for want of jurisdiction was properly denied. Preston v. Henshaw, 192 Mass. 34. The defendant’s principal having been arrested on an execution in favor of the plaintiff entered into the recognizance provided by B. L. c. 168, § 30, and duly made application to take the oath for the relief of poor debtors. A notice of the time and place appointed for the examination having been served, the only question is whether the debtor made default at the last continuance thereby causing a breach of the recognizance. The burden of proving a breach rested upon the plaintiff, and the only evidence offered was a record the material portions of which appear in the report. Blake v. Mahan, 2 Allen, 75. Toll v. Merriam, 11 Allen, 395, 397. This brief memorandum summarizing the proceedings is more in the nature of docket entries than of a formal record, which apparently has not been made, but as these minutes contain a statement of what was done, until ex [206] tended they may be considered as constituting the record itself. See Central Bridge v. Lowell, 15 Gray, 106, 122; McGrath v. Seagrave, 2 Allen, 443, 444. Although meagre this record must be taken as true, and cannot be enlarged or diminished by parol evidence, for if incorrect it can only be corrected by an amendment allowed by the court or magistrate of whose judicial action it purports to be a transcript. May v. Hammond, 146 Mass. 439, 441. Bent v. Stone, 184 Mass. 92, 95. It appears that upon the return of the citation an examination was begun which was adjourned to a subsequent date, and then was further continued to a definite hour. The breach, if any, occurred at the last continuance, when, as the plaintiff contends, no judicial action was taken until an hour had expired from the time fixed. Phelps v. Davis, 6 Allen, 287. It was the duty of the debtor to have a magistrate present who was competent to act, and to submit himself for examination by the creditor within this pe-, riod. Hooper v. Cox, 117 Mass. 1. Hills v. Jones, 122 Mass. 412. Chesebro v. Barme, 163 Mass. 79, 84. Damon v. Carrol, 163 Mass. 404, 410. When the citation was returned it plainly appears that a hearing was begun which implies that the creditor was present opposing the debtor’s discharge, and began an examination, which probably for the convenience of the parties was continued from time to time. These brief recitals are sufficient to set forth in outline the history of connected acts in a judicial inquiry, and it may be presumed that throughout the hearing the standing justice of the court was present. Stack v. O’Brien, 157 Mass. 374. Adams v. Pierce, 177 Mass. 206, 207. Bliss v. Kershaw, 180 Mass. 99, 103. Bent v. Stone, ubi supra. The plaintiff must prove that being present himself and ready to proceed the debtor was absent, and for this purpose he relies upon the recitals that “ nothing was done in said proceedings between the hours of 9 and 10 o’clock A. M. At 2 minutes past 10 o’clock A. M. . . . the debtor . . . first called the court’s attention to his presence in court.” That something is lacking to make this record full and complete is manifest, but the citation was issued from the Second District Court of Bristol, attested by the standing justice. By St. 1874, c. 293, § 1, that court was established, and by R. L. c. 160, § 39, it is required to be always open for the transaction of civil and criminal business, [207] If the debtor’s examination was the only case assigned for a hearing at that time it is not to be presumed that the judge sat in the court room during the entire hour without any visual perception of the debtor’s attendance, or if aware of his physical presence he did not take judicial notice of the fact until the debtor spoke. Nor is such a construction reasonable upon the record. It is not only highly improbable in view of this "requirement of the statute, of which we can take judicial notice, and of the presumption that public officers perform their duty, that the further examination of the debtor was the only matter that morning for judicial consideration, but the record itself fairly implies that the debtor was present in the court room although the attention of the judge had not before been specifically directed to him. Commonwealth v. Jeffts, 14 Gray, 19. Berlin v. Bolton, 10' Met. 115, 120. Commonwealth v. Desmond, 103 Mass. 445. Commonwealth v. Kane, 108 Mass. 423, 424. Osgood v. Kezar, 138 Mass. 357. The recitals that no affirmative judicial action was taken within the hour, and that the debtor first called the attention of the judge “to his presence in court” after the time had momentarily expired are not the equivalent of a judicial determination that such action could not have been taken because of the debtor’s absence, or that he then had appeared for the first time. They are, moreover, consistent with the presumption found by the Superior Court that the judge himself had personally been present, while the debtor also had been in attendance during the transaction of other business, who as soon as the orderly conduct of judicial proceedings permitted addressed the court. R. L. c. 168, § 42, provides that if the creditor, or some one in his behalf, fails to attend within the hour, and the debtor is present, he is entitled to his discharge as a failure to prosecute works a discontinuance of the suit. Bongley v. Cleavland, 133 Mass. 256. Upon this question the record is silent, and as it does not appear that the plaintiff attended either personally, or by counsel, his second, third and fourth requests for rulings were rightly refused, and the ruling that a breach of the recognizance had not been affirmatively proved was correct. Toll v. Merriam, ubi supra. Sweetser v. Baton, 14 Allen, 157. Judgment for the defendant.