Law v. O'Regan

60 N.E. 397, 179 Mass. 107, 1901 Mass. LEXIS 524

• Court: Massachusetts Supreme Judicial Court
• Decided: May 23, 1901
• Status: Published

Opinion

Hammond, J.

This is an action upon a joint bond, given in a petition brought under St. 1895, c. 234, to vacate a judgment. One of the conditions was that the defendant O’Regan should satisfy the judgment, if not vacated upon the petition. The judgment was not vacated, nor has it been in any part satisfied.

In the hearing as to the amount for which execution should issue, the defendants desired to go into the question whether there ought to have been a' judgment for the plaintiff in the original action, and, if so, for how much. No contention was made that there was collusion in obtaining the judgment. As to fraud, the defendants asked the court to rule that “ It would be a fraud on the surety, the defendant Farrell, for the plaintiff on the default in the [original] action against O’Regan, knowingly to cause an excessive value to be testified to on the property at the assessment of damages, and if he is entitled to execution for more than a nominal sum it could not be for more than the fair value of the property at the time of the conversion, if any.”

The court found that the value of the property was not shown to be excessive, and declined to rule as requested.

No fraud or collusion being shown, the judgment against the principal was Conclusive evidence of the amount of the debt thereby ascertained, both against him and the surety in this action upon the bond. Way v. Lewis, 115 Mass. 26, and cases therein cited. Exceptions overruled.