Miller v. Shea

22 N.E. 912, 150 Mass. 283, 1889 Mass. LEXIS 78

• Court: Massachusetts Supreme Judicial Court
• Decided: November 30, 1889
• Status: Published

Opinion

Field, J.

The first case is against the principal and sureties on a bond given to prosecute an appeal from a judgment of the district court, rendered on November 5, 1884. The record of the district court imports that this bond was given on the fifth day of November, 1884, after the judgment was rendered, and before the appeal was allowed. See Pub. Sts. c. 154, § 52; c. 155, § 29; St. 1882, c. 95.

If the record does not conform to the fact, application to amend it should have been made to the district court. If, by the amended record, it had appeared that the bond was actually given on the eighth day of November, it might also have appeared that the court for “ cause shown ” had extended the time for filing it. The record, as it stands, must be taken to be true, and the fact that the bond bears date as of the eighth day of November cannot be received to contradict the record.

It appears that the bond to dissolve the attachment was given after the defendants gave the bond to prosecute the appeal, and therefore the case is not within the Pub. Sts. c. 155, § 33.

It is unnecessary to consider whether, if the bond to prosecute the appeal had not been seasonably given, the ruling asked for by the defendants should have been given. See Granger v. Parker, 142 Mass. 186; Pray v. Wasdell, 146 Mass. 324.

The second case is on the bond given to dissolve the attachment, and is against one of the sureties on that bond. The same facts appear in the exceptions as in the exceptions in the first case, and the reasons hereinbefore given are decisive of the case. The entry in both cases must be.

Exceptions overruled.