Mary Brow vs. James E. Norton.
Middlesex.
January 25, 1897.
January 26, 1897.
Present: Field, C. J., Allen, Holmes, & Knowlton, JJ.
Statute — Motion to Dismiss — Discontinuance of Action.
An order discontinuing an action, on the defendant’s motion, on the ground that the plaintiff attached his property without inserting a declaration and bill of particulars in the writ, and that the plaintiff did not within three days after demand by the defendant furnish him with a copy of the declaration, is within the power of the court, under St. 1894, c. 405; and the filing of an answer in which it is stated that the motion is not waived does not operate as a waiver thereof.
Appeal from an order of the Superior Court, discontinuing an action with costs upon the defendant’s motion to dismiss, which alleged “ that the plaintiff has attached his property to the amount of one thousand dollars; that no declaration and bill of particulars were inserted in her writ; that the defendant demanded a copy of said declaration of the plaintiff, and the plaintiff did not within three days after said demand furnish to the defendant such copy.” The facts appear in the opinion.
A. G. Stanchfield, for the plaintiff.
No counsel appeared for the defendant.
*473Field, C. J.
The only question of law arising on this appeal is whether the order of the Superior Court was within its power, if that court found the facts to be as alleged in the motion. There can be no doubt that St. 1894, c. 405, confers this power on the court. It is contended that the motion was waived by the filing of an answer. It appears that on April 7,1896, which was Tuesday after the first Monday of April, on which, as we infer, the writ was returnable, the motion was filed, and that afterwards on the 5th day of May an answer was filed, in which it was expressly stated that the defendant did not waive the motion. The filing of such an answer was not a waiver of the motion. The order discontinuing the action with costs must be affirmed.
So ordered.