Badger v. Jordan Marsh Co.

• Decision Date: 28 May 1926
• Citation: 256 Mass. 153,152 N.E. 92
• Parties: BADGER v. JORDAN MARSH CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 153

152 N.E. 92

BADGER

v.JORDAN MARSH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1926.

Report from Superior Court, Suffolk County; Morton, Judge.

Suit by Gordon Badger against the Jordan Marsh Company. On report after interlocutory order overruling defendant's demurrer to complaint. Demurrer overruled.

T. L. Wiles and R. B. Owen, both of Boston, for complainant.

J. B. Zukernick, of Boston, for defendant.

PIERCE, J.

This suit comes before this court on report of a justice of the superior court after an interlocutory order overruling the defendant's demurrer to the bill of complaint.

In substance, the bill sets forth that the defendant brought two actions against the plaintiff in the municipal court of the city of Boston; that both writs were dated May 9, 1924, and were returnable into said court on May 31, 1924; that on or about June 4, 1924, a petition in bankruptcy was filed against the plaintiff in the District Court for the District of Massachusetts; that on June 4, 1924, the plaintiff was adjudicated a bankrupt; that in the schedules filed by the plaintiff in said bankruptcy proceedings there appeared all the claims of the defendant against him, and the defendant was duly notified of the plaintiff's bankruptcy in accordance with the practice of said court; that on June 6, 1924, a judgment on each of the two actions aforesaid was entered on behalf of the defendant and execution issued thereon; that on February 25, 1925, the plaintiff received his discharge in bankruptcy in the District Court for the district of Massachusetts; that on July 31, 1925, the defendant started poor debtor proceedings against the plaintiff, in the municipal court for the Charlestown district; that a citation issued returnable August 12, 1925, and proceedings in that court have been continued from time to time up to the filing of the bill of complaint.

The prayers of the bill are:

(1) ‘That the defendant be perpetually enjoined from taking any steps to enforce the judgments aforesaid in any way, including the continuance of the poor debtor proceedings, and that a temporary injunction may issue to that effect;’ and (2) ‘* * * for such other relief as to this court may seem just and equitable.’

The defendant demurred to the bill of complaint and assigned as grounds therefor the following:

(1) ‘It does not appear by said bill of complaint that the plaintiff suggested his bankruptcy proceedings to the municipal court of the city of Boston in either of the actions brought therein against him, or that he filed motions therein to continue such actions to await the determination of the bankruptcy proceedings so far as the same related to his discharge therein, or that he took any action in said municipal court of the city of Boston after he had obtained his discharge in bankruptcy to obtain a stay of the executions issued in said actions or either of them;’ (2) ‘the plaintiff has not set out in said bill a cause of action as to which he is entitled to relief in equity;’ and (3) ‘it appears by said bill that the plaintiff has a full, complete and adequate remedy at law.’

[2] The order that the demurrer be overruled was right. The debt of the plaintiff to the defendant in each action was a provable claim against the estate of the plaintiff, was scheduled by the bankrupt, and the defendant was duly notified of the bankruptcy of the plaintiff in accordance with the practice of the District Court for the District of Massachusetts. The character of the liability of the plaintiff to the defendant was not lost by being reduced to judgment. Lee v. Tarplin, 194 Mass. 47, 79 N. E. 786;Brown v. Hannagan, 210 Mass. 246, 96 N. E. 714;Boynton v. Ball, 121 U. S. 457, 467, 7 S. Ct. 981, 30 L. Ed. 985.

[4][5] In each action the cause of action was founded upon a claim from which a discharge in bankruptcy would be a release. These actions upon the filing of an answer setting up the adjudication and praying a continuance to await the termination of the proceedings in the bankruptcy court, in the discretion of the judge of the municipal court could have been stayed, but the judge was not bound so to order, and had jurisdiction to proceed to judgment. Bankruptcy Act, July 1, 1898, c. 541, 30 U. S. Sts. at Large, 549, §§ 11a, 63a, cl. 5 (U. S. Comp. St. §§ 9595, 9647); Boynton v. Ball, supra; Berry Clothing Co. v. Shopnick, 249 Mass. 459, 463, 144 N. E. 392,33 A. L. R. 579. But the defendant in those actions was under no duty to make an appropriate application to the court, before judgment in that court, to have the proceedings...