Keith v. Rosnosky

Pierce, J. This is an action of tort. The declaration was in four counts. Only the second and fourth were relied upon. The second count alleged an assault and battery and false imprisonment on March 26, 1915. The fourth count, informally stated, apparently was intended to charge a trespass quare clausum fregit by the defendant, a constable, who had entered the premises by authority of an execution against the plaintiff for possession on January 27, 1915, and had removed the plaintiff’s furniture and effects, as alleged, with such disturbance as to aggravate the sickness of the plaintiff’s child, then in bed; as also, by reason of the acts of the defendant toward the plaintiff’s child, so to affect the health of the plaintiff’s wife as to cause her to become ill therefrom; whereby “the plaintiff was put to great expehse for medical attendance and medicine for both his wife and child.” At the close of all the evidence the presiding judge “ralead] as a matter of law, that upon all the evidence in the case the plaintiff is not entitled to recover,” and directed [412] the jury to return a general verdict for the defendant, which they did. The case is before us on the plaintiff’s exceptions. Upon the count for assault and false imprisonment the plaintiff proved the arrest was on an execution for costs by the defendant in his capacity as a constable of the city of Boston. To avoid the justification the plaintiff proved that a writ of supersedeas had been issued commanding the defendant to refrain from further action on the execution; that the defendant knew the supersedeas had issued, and offered evidence tending to jprove that the defendant had received the writ of supersedeas. No evidence was offered to prove an official service of the writ on the defendant. The writ of supersedeas is not addressed to a sheriff or other officer, to be served on him who holds the process, .the action of which is to be suspended, but it is directed to the officer who holds the execution, informing him that the execution or other mandate has been superseded, Welch v. Jones, 11 Ala. 660; and like an injunction may be served by any one. In re Lennon, 166 U. S. 548, 554. We think it takes effect from the time the sheriff or constable who holds the process has actual notice of it. Hopkinson v. Sears, 14 Vt. 494. Morrison v. Wright, 7 Port. 67. Frohlichstein v. Jordan, 138 Ala. 310, 316. State v. Dwyer, 12 Vroom, 93. See Tarlton v. Fisher, 2 Doug. 671, cited in Wilmarth v. Burt, 7 Met. 257, 259. The defendant contends that “the alleged supersedeas, as a matter of law, did not properly issue and did not render the plaintiff immune from arrest” because the bond required to be given by R. L. c. 193, §§17 and 18 to the adverse party, with security approved by the court, was not approved by the court but was approved by the clerk, as appears by the docket of the court. The docket entries are-as follows: “ Feb. 11 Petr, files bond in sum of $100. Mark A. Collins surety app’d by Clerk. “11 Ct. orders Supersedeas to issue & same is issupd.” The bond on the same date as the above entries was indorsed: “Examined and approved: Edward W. Brewer, ’Clerk.” The order of docket entries and the indorsement on the bond indicate that they were all made by the direction of the court, and it must be presumed that the court, having knowledge of [413] the requirement of the statute, approved the bond and the security of the bond before ordering the supersedeas to issue. Parke v. Mabee, 176 Mass. 236. It follows that a verdict for the defendant on the second count should not have been directed. Upon the count for trespass quare clausum, fregit the defendant justified under an execution for possession. The plaintiff introduced no evidence of assault or of physical violence imposed on himself or upon his child. His wife testified that the defendant “was going back and forth. I ran up against the closet door, thinking that he was going to hit me, as he shut his fist, and hollered and hollered.” She testified “No,” in answer to the questions “He didn’t strike you?” “He didn’t come within striking distance?” It is clear the wife and child had no cause of action against the defendant because of noise and disturbance in the removal of the furniture and effects, or. because of any act of violence or threat of physical harm. Whatever the defendant did or said cannot fairly be said to have denoted at the time to the wife an intention to attack her. “The defendant’s duty was to put the true owner in possession in obedience to the command of the execution.” To put the owner into possession required of necessity the removal not only of the plaintiff, but also of his family and effects. Fiske v. Chamberlin, 103 Mass. 495. Upon all the evidence we do not think the defendant was guilty of any substantial abuse of his authority. Six Carpenters Case, 8 Rep. 146 b. The entry as to the ruling on the second count must be, exceptions sustained; and as to the fourth count, exceptions overruled; and it is So ordered.