Giantsi v. Christopher

• Decision Date: 03 October 1931
• Citation: 277 Mass. 47,177 N.E. 807
• Parties: GIANTSI v. CHRISTOPHER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 47

177 N.E. 807

GIANTSI

v.CHRISTOPHER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 3, 1931.

Exceptions from Superior Court, Worcester County; Stanley E. Qua, Judge.

Action by Dimitri Sotir Giantsi against Spiro Christopher and others. Judgment for plaintiff, and defendant brings exceptions.

Exceptions overruled.

A. Ford, of Worcester, for plaintiff.

Charles F. Campbell and Catherine W. O'Connor, both of Worcester, for defendants.

CROSBY, J.

This is an action brought to recover on a bond given under the provisions of section 13 of G. L. c. 224, as inserted by St. 1927, c. 334, § 2.

The defendant Christopher was arrested on mesne process, after a hearing on the questions of his ability to pay a judgment rendered against him, and whether or not he was intending to leave the commonwealth. Upon the judge's refusal to discharge him from arrest after such hearing, he gave a bond to the plaintiff, with the other defendants as sureties, under said section 13. The condition of the bond was that ‘if the said Spiro Christopher shall begin supplementary proceedings under chapter 334, Acts of 1927 of the General Laws and Acts amendatory thereof and supplementary thereto, and cause due notice thereof to be served upon the plaintiff or his attorney of record in the action, within thirty days after final judgment for the plaintiff therein, and shall appear at the time appointed for his examination and from time to time thereafter until the proceedings are concluded, not departing without leave of the Court and making no default and abiding all orders of the Court relative to his property, then this bond shall be void, otherwise it shall remain in full force and virtue.’ Final judgment was entered for the plaintiff in the original action on May 16, 1930.

The case was heard by a judge of the superior court who made certain findings and rulings, and ordered judgment for the plaintiff in the sum of $3,000, the penal sum of the bond. As the amount of the judgment in the original action plus interest exceeded the penal sum of the bond he ordered that execution issue for $3,000.

The judge made the following findings: The last day on which the defendant Christopher could comply with the condition of the bond by beginning supplementary proceedings and causing notice thereof to be served upon the plaintiff was Monday, June 16, 1930. On Saturday, June 14, 1930, he went with an attorney at law, who was then acting in his behalf in the absence of his counsel, to the office of the clerk of the court for the purpose in good faith of complying with the condition of the bond; while there the attorney filled out a blank application, which was provided at the clerk's office, in order to begin supplementary proceedings under St. 1927, c. 334; after the form had been filled out Christopher signed it and the attorney offered it to a clerical assistant in the office for filing; Christopher also offered to pay the required fee of $3; the assistant suggested that as one proceeding had already been filed a second was useless, and, after consulting with the clerk, refused to accept the application. On Monday, June 16, the attorney and Christopher again went to the clerk's office in the forenoon of that day and, on behalf of Christopher, the...