Redfield v. Abbott Shoe Co.

Mass. Dist. Ct., App. Div.

Redfield v. Abbott Shoe Co.

12 Mass. App. Dec. 26

CourtMassachusetts District Court, Appellate Division

DecidedJune 20, 1956

DocketNo. 393216

StatusPublished

This text of 12 Mass. App. Dec. 26 (Redfield v. Abbott Shoe Co.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Redfield v. Abbott Shoe Co., 12 Mass. App. Dec. 26 (Mass. Ct. App. 1956).

Pincite

Opinion

Adlow, C. J.

In this action commenced by-trustee process the plaintiff seeks to recover on a promissory note in the amount of $1,000. The ad damnum is in excess of $1,000. There is a statement in the body of the writ that the action is “for money due under a contract in writing”. In the declaration the plaintiff set forth a copy of the note on which she based her claim. The defendant filed a motion to dismiss the action and for reason alleged that under the provisions of G. L. (Ter. Ed.) c. 246, §1, as amended by St. 1943, c. 17, the filing of a bond was a prerequisite to the commencement of a valid action, and that the failure of the plaintiff to file such a bond deprived the court of jurisdiction. The court having denied this motion, the defendant brings this appeal.

The clear and unequivocal language of G. L. (Ter. Ed.), c. 246, §1, as amended, excludes from the operation of this act any "writ which contains a statement that the action is for money due under a contract in writing.” Having taken the precaution to allege in the body of her writ that the claim is for "money due under a contract in writing”, the plaintiff, by virtue of the exemption provided by the statute, became entitled to commence her suit by trustee process without filing a bond. Farber v. Lubin, 327 Mass. 128.

We are unable to discover any valid or plausible basis on which the defendant’s claim can be maintained.

Report dismissed,

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Adlow, C. J.

In this action commenced by-trustee process the plaintiff seeks to recover on a promissory note in the amount of $1,000. The ad damnum is in excess of $1,000. There is a statement in the body of the writ that the action is “for money due under a contract in writing”. In the declaration the plaintiff set forth a copy of the note on which she based her claim. The defendant filed a motion to dismiss the action and for reason alleged that under the provisions of G. L. (Ter. Ed.) c. 246, §1, as amended by St. 1943, c. 17, the filing of a bond was a prerequisite to the commencement of a valid action, and that the failure of the plaintiff to file such a bond deprived the court of jurisdiction. The court having denied this motion, the defendant brings this appeal.

The clear and unequivocal language of G. L. (Ter. Ed.), c. 246, §1, as amended, excludes from the operation of this act any "writ which contains a statement that the action is for money due under a contract in writing.” Having taken the precaution to allege in the body of her writ that the claim is for "money due under a contract in writing”, the plaintiff, by virtue of the exemption provided by the statute, became entitled to commence her suit by trustee process without filing a bond. Farber v. Lubin, 327 Mass. 128.

We are unable to discover any valid or plausible basis on which the defendant’s claim can be maintained.

Report dismissed,

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12 Mass. App. Dec. 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/redfield-v-abbott-shoe-co-massdistctapp-1956.

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