Opinion
January 20, 1902.
May 20, 1902.
Present: HOLMES, C.J., LATHROP, BARKER, HAMMOND, LORING, JJ.
It is within the power of a trial court to allow the attaching officer after verdict and before judgment to amend his return on the writ by adding thereto certain charges and fees for the care and custody of the property, this being especially permissible where the amendment relates to matters that occurred after the entry of the writ. If the defendant wishes to object to the officer's charges he must appeal from the taxation of costs by the clerk.
H. Dunham, for the defendant.
G.L. Mayberry, for the plaintiff.
After a verdict for the plaintiff in an action of contract, and before judgment, the officer who attached certain property on mesne process moved to amend his return on the writ by adding thereto certain charges and fees for the care and custody of the property. The defendant objected on two grounds, first that the officer could not charge any of the fees on the amended return, secondly, that the sale was illegal because delayed too long; and asked the judge so to rule. The judge refused so to rule, and allowed the motion; and the case is before us on an appeal and a bill of exceptions.
We are of opinion that the questions sought to be raised by the defendant are not properly before us. There can be no question that it was within the power of the court to allow the officer to amend his return, especially where, as here, the amendment related to matters which had occurred after the entry of the writ. The proper amount to be allowed is to be determined, in the first instance, by the clerk on the taxation of costs. From his decision an appeal will lie to a judge of the Superior Court; and from his ruling on a matter of law an appeal will lie to this court, or the questions of law may be brought here on a bill of exceptions. Cutter v. Howe, 122 Mass. 541. Clark v. Gamwell, 125 Mass. 428. Carroll v. Daly, 162 Mass. 427. Rogers v. Simmons, 155 Mass. 259, 261.
Appeal dismissed; exceptions overruled.