Houghton v. Ware

113 Mass. 49

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1873
• Status: Published

Opinion

Gray, C. J.

This appeal is not rightly here. The objections suggested by the defendant to the sufficiency of the replevin bond might be taken either by motion to dismiss, or by plea or answer in abatement. Nye v. Liscombe, 21 Pick. 263. Simonds v. Parker, 1 Met. 508. Ocean Insurance Co. v. Portsmouth Marine Railway Co. 3 Met. 420. Story Pl. 61-63. Gould Pl. c. 5, §§ 132, 133, 135. 5 Dane Ab. 709, 710. They were taken by answer in abatement. The judgment of the Superior Court upon an answer in abatement cannot be revised by this court. Gen. Sts. c. 114, § 10; c. 115, § 7. Hamlin v. Jacobs, 99 Mass. 500, and cases there cited.' The bond being required by statute to be taken of the plaintiff by the officer before completing the service of the replevin, and returned to the court with the writ for the use of the defendant, defects apparent upon the face of the bond must be deemed “ defects of form in process,” upon which the decision of the court below would have been equally final, if they had been taken advantage of by motion to dismiss. Gen. Sts. c. 143, §§ 3-5. Wolcott v. Mead, 12 Met. 516. Simonds v. Parker, 1 Met. 508, 510. Parker v. Kenyon, 112 Mass. 264. Appeal dismissed.