Garber v. Hirsh

Rugg, C. J. This is an action of tort for personal injuries. The defendant appeared and filed an answer. Thereafter, on January-14, 1913, the following was filed in court without objection: “Now comes William Hirsh and Bertha G. Hirsche and say that on October 23rd, last past, the defendant, Louis Greenberg, died, and that they were duly appointed administrators of the estate of the defendant, and pray that they be permitted to defend said action.” This was in substance a general appearance by the administrators of. the estate of .the defendant. R. L. c. 171, § 5. There was no occasion in view of that appearance for the plaintiff to make a motion under the latter part of said § 5 to require the court to cite the administrators to appear and defend the action, because they already were in court and the estate was represented. The purpose of that section is that, when a sole defendant to a cause of action dies, his administrator or executor may appear, or, if he does not, he maybe summoned. Colt v. Learned, 133 Mass. 409, 411. But both a voluntary appearance and a summons are not required. Either is enough. After the administrators were once in court as representatives of the estate, they might waive their privileges, but they could not evade théir obligations founded on their appearance. Their so called “waiver of motion,” whereby they undertook to “waive” everything in the paper first filed except the suggestion of death of the defendant, did not wipe out the effect of their appearance. Even though allowed by the court ex parte, it was not equivalent to an effacement of the general appearance. That still remained with all the obligations and liabilities flowing therefrom. So far as concerns this case, the administrators of the deceased defendant had the option of giving up their right to a defence. The “waiver of motion”"was by its express terms an abnegation of that right and a relinquishment of all other matters set forth in the paper previously filed. But it did not deprive the plaintiff of the advantage of their having appeared generally. A party cannot waive to the harm of his adversary the effect of his general appearance once entered in court. It would be gross injustice to permit administrators of the estate of a deceased defendant to appear in court voluntarily and then, after the expiration of the short statute of limitations, when a plaintiff would be powerless to cite them in to defend the case, to allow them to escape all responsibility. [425] The plaintiff’s motion to default the defendants because of their withdrawal ought to have been granted. Its denial was error. Order denying motion for default reversed.