American Woodworking MaChinery Co. v. Forbush

• Decision Date: 02 January 1907
• Citation: 79 N.E. 770,193 Mass. 455
• Parties: AMERICAN WOODWORKING MACHINERY CO. v. FORBUSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 455

79 N.E. 770

AMERICAN WOODWORKING MACHINERY CO. v. FORBUSH.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1907

COUNSEL

Harrison Dunham, for plaintiff.

D. D Corcoran, for defendant.

OPINION

KNOWLTON C.J.

On October 12, 1905, the defendant was defaulted, and the next day all papers necessary to make up the judgment were filed in the case. On November 2d the defendant filed a motion for a continuance on the ground of his bankruptcy; on Monday November 6th, at half past 10 o'clock in the forenoon this motion was granted by the court. On the same day, at what hour in the day the bill of exceptions does not show, a judgment for the plaintiff was entered by the clerk, under the standing order of the court. Subsequently the plaintiff's counsel filed a motion to dismiss the motion for continuance which had been allowed, and upon hearing the motion to dismiss was disallowed, and the motion to continue was allowed, as of November 2, 1905, that being the intention of the court by the order of November 6th. The plaintiff excepted to the refusal of the court to rule that, 'it had no jurisdiction to grant a continuance of said action,' and that the defendant had 'no standing in court to make a motion for continuance.'

If judgment was wrongfully rendered under the general order, because the case was not ripe for judgment, the motion for a continuance was rightly granted, and it is unnecessary to consider whether the order of the court might not be sustained on other grounds.

Bankr Act U.S. July 1, 1898, c. 541, § 11, 30 Stat. 549 [U. S. Comp. St. 1901, p. 3426], is as follows: 'A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after the adjudication or the dismissal of the petition. If such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or if, within that time, such person applies for a discharge, then until the question of such discharge is determined.' Unlike our statutes in regard to insolvency, this act does not leave the continuance of a case upon the application of the bankrupt defendant therefor to the discretion of the court, but it requires the court to grant the continuance. In this respect the case differs from Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15, 55 N.E. 468, relied on by the plaintiff. See Sullings v. Ginn, 131 Mass. 479. It also differs from that case in another important particular. Something had intervened between the default and the entry of judgment under the general order, namely, the suggestion of bankruptcy, and the motion for a continuance founded upon it. As was said in that case, under such circumstances it may well be said that a...