
    Margaret Duffee vs. H. M. Call.
    Plymouth.
    Oct. 16. —17, 1877.
    Morton, Lord & Soule, JJ., absent
    If a writ, duly served upon a person summoned as trustee of the principal defendant, is not entered, and he appears and files a complaint at the first term, he is entitled to judgment for his costs; and his right to file such a complaint is not affected by his having filed an answer.
    Complaint for costs, by a person duly summoned as trustee of Cynthia Hall, named as defendant in a writ sued out by H. M. Call and returnable at October term 1876 of the Superior Court.
    The trustee appeared and filed an answer on the first day of the term, and afterwards discovered that the writ had not been entered, and thereupon and during the same term filed this complaint. No service was made upon the defendant; but the trustee was first informed of that fact after this complaint had been filed.
    
      Allen, J., ruled that the complaint must be dismissed; and the complainant alleged exceptions.
    
      O. Gr. Davis, for the complainant.
    No counsel appeared for the respondent.
   Gray, C. J.

If a writ duly served is not entered, the defendant, upon appearing pursuant to the summons served upon him and filing a complaint at the first term, is entitled to judgment for his costs. Gen. Sts. e. 120, § 12; c. 129, § 9. Gilbreth v. Brown, 15 Mass. 178, 180. Lombard v. Oliver, 5 Gray, 8. Cardival v. Smith, 109 Mass. 158, 160. And a person summoned as trustee of the principal defends nt has the like right. Gen. Sts. e. 129, § 9. Brown v. Seymour, 1 Pick. 32. The filing of a trustee’s answer, in an action which had been discontinued by the plaintiff’s failing to enter it, was a nullity, and did not waive or affect the right of the trustee to file a complaint for costs at the term at which she had been summoned to appear.

Exceptions sustained.  