Duffee v. Call

123 Mass. 318, 1877 Mass. LEXIS 275

Opinion

Gray, C. J.

If a writ duly served is not entered, the defendant, upon appearing pursuant to the summons served upon him and filing a complaint at the first term, is entitled to judgment for his costs. Gen. Sts. e. 120, § 12; c. 129, § 9. Gilbreth v. Brown, 15 Mass. 178, 180. Lombard v. Oliver, 5 Gray, 8. Cardival v. Smith, 109 Mass. 158, 160. And a person summoned as trustee of the principal defends nt has the like right. Gen. Sts. e. 129, § 9. Brown v. Seymour, 1 Pick. 32. The filing of a trustee’s answer, in an action which had been discontinued by the plaintiff’s failing to enter it, was a nullity, and did not waive or affect the right of the trustee to file a complaint for costs at the term at which she had been summoned to appear.

Exceptions sustained.