Massasoit-Pocasset National Bank v. Borden

Pierce, J. This is an action on a bond dated October 15, 1913, given to the plaintiff as assignee of Ralph T. C. Jackson, by the defendant as principal and the defendant Royal Indemnity Company as surety, in the amount- of $4,000. The bond was given under R. L. c. 197, § 28, to dissolve a me [583] chanic’s lien upon the interest of the defendants in the real estate described in the bond, upon which the assignor of the plaintiff had claimed a lien pursuant to the provisions of R. L. c. 197 and acts in amendment thereof. The execution of the bond was not denied. On October 22,1913, it was approved by the obligee, and on October 23 it was duly recorded in the registry of deeds for the county in which the property lies. The plaintiff, as assignee of the lienor Jackson, had the right to enforce the lien in Jackson’s name, Wiley v. Connelly, 179 Mass. 360; as assignee, he was not “A person to whom a debt is due . . .;” nor was he “the party claiming the lien” within the meaning of R. L. c. 197, §§ 1, 28. In running to the plaintiff as assignee of the person claiming the lien the bond was not in conformity to the statute. It was therefore void as a statutory bond, Rockwell v. Kelly, 190 Mass. 439, but was good as a common law bond, binding on the parties although not made in the mode provided by the statute under which it purports to have been given. Bank of Brighton v. Smith, 5 Allen, 413. Mosher v. Murphy, 121 Mass. 276. Pray v. Wasdell, 146 Mass. 324. Farr v. Rouillard, 172 Mass. 303. Howe v. Grimes, 211 Mass. 33. See Chertok v. Morang, post, 598. October 25,1915, action was brought on the bond in the Second District Court of Bristol with the ad damnum in the writ of $1,000. That court dismissed the action for want of jurisdiction. On appeal, the defendants filed in the Superior Court a motion that judgment be entered for the defendants; the motion was denied and the judge found for the plaintiff. It is settled that the jurisdiction of district courts, so far as it depends upon the amount or value of the thing in question, is to be decided solely by the ad damnum set forth in the writ; and it is also settled that the jurisdiction of the Superior Court, as an appellate court is dependent on the jurisdiction of the inferior court. Ashuelot Bank v. Pearson, 14 Gray, 521. Hall v. Hall, 200 Mass. 194. In the case at bar, notwithstanding the ad damnum of the writ is not greater than the jurisdiction of the district court, it is contended that that court was without jurisdiction to hear and determine the issues because upon proof of a breach the judgment must be for the penalty of the bond, R. L. c. 177, § 9, Newton v. Rice, 118 Mass. 417; and also because it would be erroneous to enter judgment in excess of the ad damnum of the writ. Safford [584] v. Weare, 142 Mass. 231. French v. Goodnow, 175 Mass. 451. But we are of opinion that neither the statute nor any principle of • public policy requires of an inferior court upon proof óf a breach of a bond the entry of a judgment for the full penal sum of that bond, against the expressed desire and consent of the obligee to an entry of a judgment within the ad damnum of his writ and the jurisdiction of that court. Huntress v. Burbank, 111 Mass. 213. The admission of the warrant of sale and a certified copy thereof, as evidence of a final judgment in the suit brought to enforce the lien, was error. The final judgment in a lien suit is the decree of sale which establishes the lien for a certain amount and orders a sale of the premises. The warrant of sale which issues upon and follows this decree corresponds to an execution which follows a final judgment in a common law action. A disputed judgment can be proved only by the record of that judgment or by a copy thereof duly attested by the clerk of the court wherein it was rendered. Hoover v. Jones, 84 Neb. 662. The motion that judgment be entered for the defendants was denied rightly. The exception to the admission of the evidence is sustained. So ordered.