Greenstein v. Singer

CourtUnited States State Supreme Court of Rhode Island
Citation83 R.I. 17,112 A.2d 525
Docket NumberNo. 9524,9524
PartiesMorris GREENSTEIN v. Rose SINGER. Ex.
Decision Date16 March 1955

James J. Corrigan, Providence, for plaintiff.

John S. McKiernan, Providence, for defendant.

CONDON, Justice.

This is a proceeding wherein the defendant filed a motion to stay execution on a judgment for the plaintiff for $4,500 duly entered in the superior court in an action of trespass for trover and conversion. See Greenstein v. Singer, 80 R.I. 141, 93 A.2d 306, 96 A.2d 623. The motion is based on a discharge in bankruptcy obtained by the defendant after entry of such judgment. After a hearing in the superior court the trial justice filed a rescript denying the motion on the ground that the judgment debt was based on the defendant's malicious and willful injury to the plaintiff's property and, therefore, was not dischargeable in bankruptcy. The defendant duly excepted to such decision and the case is properly here on her bill of exceptions thereto.

In this court prior to assignment of the case for hearing on the merits plaintiff filed a motion to dismiss the bill of exceptions on the ground that a decision of the superior court on a matter arising after entry of judgment was not reviewable here by exceptions. We denied the motion without prejudice to plaintiff's right to renew it when the case would be heard on the merits. He has renewed such motion and in addition to the above ground he contends that the trial justice's decision was an exercise of his discretion and therefore not reviewable by this court. We shall dispose of those contentions before proceeding to discuss the merits of defendant's motion.

Neither contention is tenable. As to the first, there can be no question of defendant's right to except to the trial justice's decision. Rule 21 of the Rules of Practice of the Supreme Court expressly provides: 'Decisions, rulings and orders of the superior court upon any matter subsequent to judgment may be excepted to and may be made the subject to a bill of exceptions in the same manner, as near as may be, as decisions, rulings and orders prior to judgment, provided that this rule shall in no way change the established procedure in divorce.' This rule which was promulgated February 19, 1934 supersedes any contrary provision of the general laws governing the prosecution of bills of exceptions to this court. It also has the effect of overruling whatever was held to the contrary in Fontaine v. Inlaid Co., 36 R.I. 373, 90 A. 662, upon which plaintiff so strongly relies.

The plaintiff's second contention in support of his motion to dismiss would have merit if the proceeding under review were a motion for a mere temporary stay of execution, but it is not. The motion here is for a permanent stay and raises a question of law whether defendant's discharge in bankruptcy is a bar to the enforcement of the judgment entered in the action of trover and conversion. Such a question cannot be finally decided by a justice of the superior court in the exercise of his discretion.

By virtue of section 1 of article XII of amendments to the constitution of Rhode Island this court is vested with 'final revisory and appellate jurisdiction upon all questions of law and equity.' Hence the decision of the trial justice on the question of law raised by defendant's motion for a stay is reviewable here if it is properly prosecuted. It has been so prosecuted by a bill of exceptions as expressly authorized by rule 21 above quoted. We are therefore of the opinion that plaintiff's motion to dismiss such bill of exceptions must be denied.

We now come to a consideration of the merits of defendant's motion for a permanent stay of the execution. It appears that after judgment was duly entered against her in the superior court for conversion of certain funds to which plaintiff had the right of possession, she filed a petition in bankruptcy and listed such judgment in the schedule of her provable debts. In due course she obtained a discharge in bankruptcy and thereupon filed in the superior court the instant motion to stay permanently the execution issued on the judgment entered in the action of trespass for trover and conversion.

At the hearing on such motion in the superior court she made profert of her discharge in bankruptcy and rested. She contended that it then became the duty of plaintiff to show that his judgment debt against her was saved from the effects of such discharge. That contention substantially states the view generally held by courts that have passed upon the question. Kreitlein v. Ferger, 238 U.S. 21, 35 S.Ct. 685, 59 L.Ed. 1184; In re Levitan, D.C., 224 F. 241; Massachusetts Bonding & Ins. Co. v. Lineberry, 320 Mass. 510, 70 N.E.2d 308; Gignac v. King, 117 Vt. 563, 96 A.2d 824; Frangos v. Frangos, 157 Pa.Super. 87, 41 A.2d 416; Damato v. Ambrose, 122 N.J.L. 539, 6 A.2d 189.

The trial justice apparently did not agree with defendant at the hearing and suggested that it was incumbent upon her as the moving party to show not only that the judgment debt was listed in the schedule accompanying her bankruptcy petition and that she obtained a discharge based thereon, but also that such debt was one dischargeable under the bankruptcy act. This was the position taken by plaintiff and he did not offer to and did not show wherein the judgment was excepted by any provision of the act. Later in the hearing, however, the trial justice accepted the suggestion of defendant that he consider the transcript of evidence and the exhibits introduced in the trial of the action of trespass for trover and conversion and determine therefrom whether such debt was dischargeable. Over the objection of plaintiff, he took the motion under advisement until he could do this.

It appears from his rescript that as a result of his consideration of such evidence and the opinion of this court on the motion for reargument in Greenstein v. Singer, 80 R.I. 141, 147, 93 A.2d 306, 96 A.2d 623, he was convinced 'that in any event the defendant deprived the plaintiff of the right of possession of the sum of $4500.00 which possession has never been restored.' And in conclusion he stated: 'This wrongful act of the defendant was practically a larcenous act and in the opinion of the Court was a willful and malicious injury to the property to which the plaintiff had, at least, the right of...

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