Cabana v. Conclave

34 N.E. 1135, 160 Mass. 1, 1893 Mass. LEXIS 1

Opinion

Allen, J.

The writ described the defendant as a corporation. By Pub. Sts. c. 167, § 87, when a party is sued as a corporation, such fact shall be taken as admitted unless the defendant files in court, within ten days from the time allowed for answer, a special demand for proof thereof. By § 89, this provision is made applicable to civil actions before police courts. The rules of the Police Court of Holyoke did not require an answer in writing, but the oral pleading was a joinder of issue, and stood in the place of an answer. Wilbur v. Taber, 9 Gray, 361. The statute clearly implies that the special demand for proof should precede the trial; otherwise it would be useless. By going to trial without filing such demand, or asking delay after joining issue for the purpose of filing it, the defendant waived the right to take this objection. The Legislature no doubt intended to make an effective requirement that a defendant wishing to rely on such a misdescription should give early notice thereof to the plaintiff. Otherwise the defendant might lie by in the police court, and go to trial upon the substantial merits of the case, and omit all intimation of this objection till after the entry of an appeal in the Superior Court. That is just what the defendant did in this case. The ruling that the plaintiff was not bound to prove the defendant’s incorporation was right.

Verdict to stand.