Cutter v. Evans

• Decision Date: 09 March 1874
• Citation: 115 Mass. 27
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Marshall N. Cutter & another v. Thomas C. Evans

115 Mass. 27

Marshall N. Cutter & another v. Thomas C. Evans

Supreme Court of Massachusetts

March 9, 1874

[Syllabus Material]

Suffolk.Contract by Marshall N. Cutter and Benjamin F Parker upon a joint and several bond to dissolve an attachment conditioned to pay a judgment within thirty days.The case was heard in the Superior Court upon the following agreed statement of facts:

"The writ was dated March 12, 1873.The defendant, Evans, was a surety upon the bond, and George C. Angell was principal, and the date of the bond was June 13, 1870.The original action, in which the attachment was made and the bond given, was brought in the Superior Court, for goods sold and delivered.Judgment was recovered against Angell in that action, at January term 1871, and has never been satisfied or reversed.The defendant offered to prove certain facts which plaintiffs objected to as incompetent and immaterial; but if the same are competent and material, the following is to be taken as a true statement thereof:

"At July term, 1870, pending the above original action, James Sumner, an attorney at law, appeared and filed an answer therein for the defendant Angell.Thereafter, on September 27, 1870, Angell was adjudicated a bankrupt, under the laws of the United States, in the District Court of the United States for the district of Massachusetts, and on the same day, Charles G. Keyes, Angell's solicitor in bankruptcy, entered his name in said action, with Sumner's name, upon the clerk's docket, as of counsel for defendant, and made an oral suggestion of defendant's bankruptcy, which the clerk noted in pencil upon the docket, Sumner having been notified by said Angell to withdraw from the case.Keyes's name was never withdrawn.No motion or paper touching the bankruptcy was filed in this case.The plaintiffs put the action upon the trial list for January term, 1871.In January or February, 1871, one of the plaintiffs' counsel met Sumner upon the street, and said to him, 'I suppose you have no objection now to our having judgment in the Angell case.'And Sumner said 'No.'About the first day of March following, the case was reached upon the trial list, and plaintiffs were in court and said they were ready, and defendant not appearing, plaintiffs moved for a default, which was allowed.Ten days afterwards, on March 11, judgment was entered upon the default, on motion of the plaintiffs.In October, prior to the default and judgment, the first meeting in bankruptcy of Angell's creditors was held, and one of plaintiffs' counsel chosen assignee; and at the same meeting plaintiffs proved their claim, and the same was allowed, and plaintiffs appear upon the record of the bankrupt court as creditors who have proved their claim.Within thirty days after recovering the judgment, plaintiffs gave notice thereof in writing to Angell, and made demand for payment; and immediately after the expiration of the thirty days, gave similar notice to, and made demand upon Evans.Shortly after this, on April 17, 1871Angell filed a bill in the United States District Court, asking for an injunction against plaintiffs, and, by consent, plaintiffs were enjoined in the following terms: 'By consent in open court, ordered that injunction issue restraining respondents from levying their judgment mentioned in complainant's bill upon the person or estate of complainant, and from levying, or in any way proceeding in said judgment against the complainant, until the further order of the court.'Angell's discharge in bankruptcy was refused January 14, 1873, and the above injunction dissolved March 1, 1873.

"If these facts offered by defendant are competent, and afford a legal defence or ground for abating or barring this action, then such decree is to be made for the defendant as the court deems proper; otherwise, judgment to be entered for plaintiffs in one thousand dollars, the penalty of the bond."

On the foregoing facts judgment was ordered for the plaintiffs, and the defendant appealed to this court.

Judgment for the plaintiffs.

G. W Morse, for the defendant.No creditor proving his claim in bankruptcy shall...