Johnson v. Sprague , 183 Mass. 102 ( 1903 )

Morton, J.

This is a writ of scire facias to recover costs of the defendants as indorsers of the writ in an action brought by the P. C. Lewis Manufacturing Company, a corporation established under the laws of New York, and having its place of business at Catskill in that State, against the present plaintiff, who had judgment in that action for his' costs. The judge found for the plaintiff in this action, and the case is here on exceptions by the defendants to the admission of certain evidence, and to the refusal of the judge to give certain rulings that were asked for.

The exceptions in regard to the admission of evidence have not been argued and we therefore treat them as waived. The matters now relied on are in substance that the alleged indorsement was made without the authority of the defendants, that it was made for a different purpose, that a firm is not a person within the meaning of the statute, and that the action is against the defendants individually and not as partners. The defendants also contend that even if they are to be regarded as indorsers they were discharged by the subsequent proceedings.

1. The statute requires writs in which the plaintiff is not an inhabitant of this State to be indorsed before entry by some sufficient person who is such inhabitant. Pub. Sts. c. 161, § 24. R. L. c. 173, § 39. We do not see why an indorsement by a firm would not be sufficient, nor why it would not come within the scope of the business of a firm of practising attorneys. The form of the indorsement was sufficient to bind the defendants if made by them or by their authority, and the fact, if it was a fact, that it was made with a different purpose was immaterial. Morrill v. Lamson, 138 Mass. 115. Wheeler v. Lynde, 1 Allen, 402. Slate v. Ackley, 8 Cush. 98. Even if, as made by the clerk, it was made without their authority, it was competent for the judge to find from the entry of the writ and the other proceedings that the defendants had ratified and adopted it. If there is anything in the objection that the action should have been brought against the defendants as former copartners, the objection should have been taken by plea or answer in abatement. The objection, based upon the rule of the Superior Court, that no attorney shall become bail or surety in any criminal or civil suit or proceeding in which he is employed, is met by Morrill v. Lamson, supra.

2. We see nothing in the subsequent proceedings that operated to discharge the defendants. The firm of Sprague and Washburn continued to appear of record as attorneys for the plaintiff notwithstanding it had been dissolved. If notice of the motion to take off the default had been served on the defendant Sprague as a member of the firm of Sprague and Washburn it would clearly have been sufficient. The fact that he received it as a member of the firm of Sprague and Messer, who were attorneys in fact of the plaintiff, does not render it any the less notice to him under the circumstances, it seems to us, as a member of the firm of Sprague and Washburn. Further it is doubtful, to say the least, whether the court could not have taken off the default of its own motion without notice to any one. Ellis v. Ginsburg, 163 Mass. 143.

Lxceptions overruled.