McKeon v. Briggs

Crosby, J. This is an action against the surety on a poor debtor recognizance. The breach relied on is that the debtor did not deliver himself up for examination within thirty days from the day of his arrest. The debtor, one George W. Choate, was arrested on an execution on January 9, 1917, and entered into a recognizance under R. L. c. 168, § 30. There was evidence that on February 6, 1917, he appeared with his surety in the poor debtor’s session of the Municipal Court of the City of Boston, delivered himself up for examination, and made application to take the oath for the relief of poor debtors. An order of notice issued thereon to the judgment creditor, returnable February 27, 1917, at nine o’clock in the forenoon. The notice required the judgment creditor to “pay to the clerk the fee of three dollars for these proceedings forthwith.” The record of the court was introduced in evidence and contained the following recital: “Patrick McKeon vs. George W. Choate. Fee not paid. Attorney for creditor, E. M. Shanley. Attorney for debtor, C. F. Eldredge and Harold Caverly. February 6, 1917, notice of debtor’s desire to take the oath for the relief of poor debtors issues, returnable February 27,1917, 9 A. M. February 24, 1917, notice returned with service.” The plaintiff offered in evidence, subject to the exception of the defendant, a written application to take the oath, signed “Harold Caverly on behalf of George W. Choate.” It was no part [102] of the record in the case, and should have been excluded. The exception to its admission must be sustained. The record of the court, correctly construed, shows that the debtor on February 6, 1917, delivered himself up for examination in accordance with the statute (R: L. c. 168, § 30), and gave notice of his desire to take the oath for the relief of poor debtors. That the record cannot be contradicted or controlled by extrinsic evidence, but is conclusive and binding upon the parties, is well settled. Niles v. Silverman, 216 Mass. 242. Haskell v. Cunningham, 221 Mass. 49, 53. It was decided in Howard v. Roach, 226 Mass. 80, that when the application is made the debtor must appear personally, not merely by attorney, within thirty days of his arrest, in order to comply with the condition of the recognizance; in that case counsel for the debtor appeared and made application to take the oath in the absence of the debtor, while in the case at bar the debtor himself appeared in court and personally made the application. As the evidence that the debtor was present in court on February 6 was conclusively established by the record, the testimony of the plaintiff to the effect that the debtor told him he had never been in the poor debtor session before March 20, was inadmissible, and the exception thereto must be sustained. According to the docket entries, the notice was served on the creditor’s attorney on February 9, 1917, the fee was paid by the creditor on February 26, 1917, on February 27, 1917, at the time and place fixed, the creditor’s attorney and the debtor appeared, and the hearing was continued by order of the court to March 20,1917, at nine o’clock in the forenoon. The court record also contains the following recital: “March 20, 1917, debtor sworn. Examination ordered to proceed. Justice Burke. March 20, 1917, 10 :27 A. M., debtor appears; creditor does not appear. Burke, Justice.” The undisputed evidence shows that the creditor and his counsel and the debtor and his counsel were present in the poor debtor’s court on February 27, 1917. The plaintiff testified as follows: “I was there the second time, March 20, 1917, to which time the case had been continued. Mr. Shanley was there; Mr. Choate was there and his counsel. That is the day the court ordered the examination to go forward. Then later Mr. Shanley, my counsel, [103] and I went out, and left Mr. Choate and his counsel there.” The burden was on the plaintiff to show that there had been a breach of the recognizance, under which the debtor agreed to deliver himself up for examination within thirty days from the date of his arrest and abide the order of the court. If the oral evidence to show that the.debtor was present in court on that day was not believed by the jury, still there was no competent evidence introduced to the effect he was not there. It follows that the plaintiff has wholly failed to prove a breach of the recognizance.' The testimony of the plaintiff, admitted subject to the exception of the defendant, that the debtor told him that he (the debtor) had never been in the poor debtor court before March 20,1917, was not admissible to establish that he was not present in court on February 6, 1917, because the record is conclusive upon that question; accordingly we need not consider whether under other circumstances the evidence would have been admissible. Simmons v. Poole, 227 Mass. 29, 36. Haney v. Donnelly, 12 Gray, 361. The circumstance that, when the debtor went to the poor debtor session of the court with his counsel to deliver himself up for examination and to make the application to take the oath, the magistrate was not in the court room but was in the lobby adjoining and did not personally see him, is immaterial. It is undisputed that dining the month of February, 1917, the court was in session daily from nine o’clock in the forenoon until four o’clock in the afternoon; it was open during that time for the transaction of business, and the judge was at all times available. The debtor in surrendering himself and making his application need not be in the actual presence of the magistrate; it is sufficient if the latter is at hand and is readily accessible for the transaction of such business as properly may be presented to him. See Simon v. Justices of Municipal Court, 224 Mass. 122. The statute is complied with if the debtor within thirty days delivers himself up for examination before a magistrate qualified , to act. Howard v. Roach, supra. The uncontradicted evidence shows that such a magistrate was present when the debtor appeared in court and made application to take the oath on February 6, 1917; and also, that on March 20, 1917, the day finally fixed for the hearing, the debtor and the creditor, with counsel, [104] were all present in court at the appointed time and that the creditor had ample opportunity to examine the debtor, but declined to do so and left the court room with his counsel. We need not determine whether the appearance by the creditor’s counsel on the return day fixed for the examination, his subsequent appearance at the hearing on March 20, 1917, and the payment by him on February 26 of the required fee, without raising any objection whatever to the regularity of the proceedings, operated as a waiver of any failure of the debtor properly to surrender himself for examination, or of any want of jurisdiction in the court, over the person, because we are of opinion that as matter of law the evidence did not warrant a finding that there had been a breach of the recognizance. See McInerny v. Samuels, 125 Mass. 425; Sturman v. McCarthy, 232 Mass. 44. The defendant’s request, that the judge order a verdict for the defendant on the ground that on all the evidence the plaintiff was not entitled to recover, should have been given, the exception to the refusal of the judge so to do is sustained, and judgment is to be entered for the defendant under St. 1909, c. 236. So ordered.