Elliott v. Warwick Stores, Inc.

• Decision Date: 05 November 1952
• Citation: 329 Mass. 406,108 N.E.2d 681
• Parties: ELLIOTT v. WARWICK STORES, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 681

108 N.E.2d 681

329 Mass. 406

ELLIOTT v. WARWICK STORES, Inc.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 18, 1952.

Decided Nov. 5, 1952.

Samuel L. Thompson, Springfield, for plaintiff.

Lawrence D. Friedman, Springfield, for defendant.

Before QUA, C. J. and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

WILLIAMS, Justice.

This is an action of tort for abuse of legal process tried in the District Court of Springfield. The judge found for the plaintiff and reported to the Appellate Division his denial of certain requests for rulings submitted by the defendant. The Appellate Division decided that there was prejudicial error in denying the defendant's twenty-fourth request reading, 'That the institution of proceedings by trustee process prior to judgment to enforce the payment of a dischargeable or nondischargeable debt by bankruptcy, should not be treated or considered as an abuse of legal proces,' and ordered judgment for the defendant. The plaintiff appealed from the decision.

The judge made no findings of subsidiary facts but reported that there was evidence tending to show that in January, 1950, the defendant caused the plaintiff's wages to be trusteed on two successive weeks; that the plaintiff then owed the defendant approximately $100 on four contracts of conditional sale made between November 18 and December 20, 1947, for the purchase of wearing apparel and a watch; that on June 2, 1948, the plaintiff was adjudicated a bankrupt and received a discharge in bankruptcy on November 17, 1948; and that in his bankruptcy schedules the defendant was listed as an unsecured creditor. There was in evidence a 'Certificate of Mailing dated June 7, 1948, by the U. S. District Court Clerk, together with a copy of the schedules in bankruptcy.' The plaintiff effected a discharge of the trustee writ by paying to the defendant a certain amount in cash and agreeing in writing to pay the balance due in weekly instalments.

The appeal brings before us the rulings of law which were reported by the judge to the Appellate Division and questions of law touching the action of the Appellate Division. Bresnick v. Heath, 292 Mass. 293, 296, 198 N.E. 175. Himelfarb v. Novadel Agene Corp., 305 Mass. 446, 447, 26 N.E.2d 320. The only ruling of the judge which is before us is his denial of the defendant's twenty-fourth request.

We take the requested ruling to mean that it is not abuse of process to institute legal proceedings by trustee process to collect a debt which is dischargeable in bankruptcy. It is provided by G.L. (Ter.Ed.) c. 246, § 1, as amended, that all personal actions, with exceptions not here material, may be commenced by trustee process. If the defendant had a right to collect a debt owed to it by the plaintiff by legal process, it could properly adopt this method of procedure. See Johnson v. Reed, 136 Mass. 421. A debt is not extinguished by a discharge in bankruptcy. The remedy upon the debt and the legal obligation to pay are at an end, but the debt itself is not cancelled. Champion v. Buckingham, 165 Mass. 76, 78-79, 42 N.E. 498. Citizens' Loan Association v. Boston & Maine Railroad, 196 Mass. 528, 530, 82 N.E. 696, 14 L.R.A.,N.S., 1025. E. S. Parks Shellac Co. v. Harris, 237 Mass. 312, 317, 129 N.E. 617. Westminster National Bank v. Graustein, 270 Mass. 565, 587, 170 N.E. 621. Wexler v. Davis, 286 Mass. 142, 144, 189 N.E. 824. Remington on Bankruptcy (5th ed.) s. 3448. While the discharge in bankruptcy affords to the debtor a complete legal defence to an action on the debt if he wishes to avail himself of it, the discharge must be pleaded. Lane v. Holcomb, 182 Mass. 360, 362, 65 N.E. 794. Castaline v. Swardlick, 264 Mass. 481, 484, 163 N.E. 62. Such pleading is similar in legal effect to the pleading as a bar of the statute of limitations. Champion v. Buckingham, 165 Mass. 76, 78-79, 42 N.E. 498. 'To constitute a cause of action for * * * [abuse of process] it must appear that the process was used to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.' Gabriel v. Borowy, 324 Mass. 231, 236, 85 N.E.2d 435, 439. Noyes v. Shanahan, 325 Mass. 601, 604, 91 N.E.2d 841. It is not in itself abuse of process to bring an action the only purpose of which is to enforce the collection of an existing debt, although the plaintiff knows that the debt is dischargeable in bankruptcy and that the defendant may bar the action by pleading a discharge. The Appellate Division was right in deciding that there was prejudicial error in denying the request.

In our opinion, however, the Appellate Division should not have...