Lizotte v. Dloska

86 N.E. 774, 200 Mass. 327, 1909 Mass. LEXIS 989

• Court: Massachusetts Supreme Judicial Court
• Decided: January 4, 1909
• Status: Published

Opinion

Rugg, J.

This is a writ of review. It was referred in the Superior Court to an auditor, with the stipulation that his finding of facts should be final. At the hearing upon his report the fundamental question raised was whether the original action was prematurely brought. The action was instituted on April 27, 1906. The plaintiff in review, an attorney at law, in January, 1906, was given by the defendants in review $600 dollars “to be used,” as stated by him in his contemporaneous receipt, “ in obtaining bail and paying all expenses and fines and for services in getting bail, and to defend John Farra and Joseph Goyeski against cases in the Superior Court, the balance to be returned to ” the defendants in review. He immediately procured the bail and paid attendant expenses, including an allowance to one of the bondsmen. In February following, Farra pleaded guilty to a complaint for assault and was fined, the plaintiff in review paying the fine. At the same time, and before any trial was begun, the other cases were disposed of by agreement with the district attorney that they should be “ nol prossed ” at the June sitting following.

The district attorney had the absolute power to enter a nolle prosequi upon his official responsibility, without the approval or intervention of the court. He alone is answerable for the exercise of his discretion in this respect. It is presumed that he will act under such a heavy sense of obligation for enforcement of the law and sensitive consciousness of important public duty that no wrongful act .will be committed. Commonwealth v. Wheeler, 2 Mass. 172. Commonwealth v. Tuck, 20 Pick. 356. The entry of a nolle prosequi is final so far as the particular case is concerned. It does not require the presence nor the consent of the defendant. Therefore the agreement of the prosecuting officer, that the indictments or complaints should not be further prosecuted and that an entry upon the records of the court should be made to that effect at an early sitting, was tantamount to the completion of the service which the plaintiff contracted to render in defending Farra and Goyeski in the criminal proceedings pending against them. It is not to be assumed that the word of a prosecuting officer will be broken respecting the disposition of cases, in instances where the whole matter lies in his own hand. It is significant of the view which Lizotte took of the situation that, after the district attorney had said he would not further prosecute the cases, he collected $200, which had been deposited with one of the bondsmen, at the same time paying him for his services as such and giving a receipt, which stated that the cases had been disposed of and there was no longer liability as surety.

*

It is not necessary to discuss whether the statement that the surety was relieved from further liability was technically accurate. It was practically so treated by all parties, including the district attorney in his capacity as responsible representative of the obligee on the bond. The cases had been disposed of so far as the plaintiff was concerned. In his account for services and disbursements the plaintiff in error made no charge after February, 1906.

Under these circumstances the finding of the auditor that at the time of the bringing of the original action “the purposes for which the money had been placed in the hands of Lizotte had •* been accomplished and the suit was not prematurely brought ” was fairly supported by the facts reported. The rulings requested in the Superior Court were properly refused.

Exceptions overruled.

Lizotte paid this $200 to one of the bondsmen at the time when he went on the bonds, and took from him the following receipt: “January 3, 1906. Received of Leonora Dloska and Maria Gaueska by hand of M. L. ■ Lizotte two hundred dollars, deposited in my hands for going bail for John Farra and Joseph Goyouski [Goyeski], held for Grand Jury, etc. If the said Farra and Goyouski appear as commanded and make no default, I hereby agree to return said money to said Lizotte or said Dloska and Gaeuska after such defendants have been disposed of by the Superior Court, less a reasonable amount for expenses and fee for furnishing said bail. Samuel Macarovsky.” On February 19, 1906, he received back from Macarovsky $165, and gave him the following receipt: “February 19, 1906. Received of Samuel Macarovsky one hundred and. sixty-five dollars, money deposited in his hands for going surety in the cases of John Faras [Farra] and Joseph Goyousky [Goyeski], which cases has been disposed of by Superior Court on Feb. 15, 1906, and therefore the said Macarovsky is held no further as such surety. The said Macarovsky’s charges for furnishing said bail is thirty-five dollars. The whole amount deposited in my hands was two hundred dollars. M. L. Lizotte.”