Nat'l Sur. Co. v. Reed

• Decision Date: 29 February 1928
• Citation: 160 N.E. 281,262 Mass. 372
• Parties: NATIONAL SURETY CO. v. REED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 372

160 N.E. 281

NATIONAL SURETY CO.

v.REED.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1928.

Appeal from Superior Court, Suffolk County; E. B. Bishop, Judge.

Action by the National Surety Company against Harold F. Reed. Judgment for plaintiff, and defendant appeals. Affirmed.

Franklin F. Phillips, of Boston, for appellant.

F. L. Norton, of Boston, for appellee.

WAIT, J.

It is agreed that the plaintiff obtained judgment against Phillips and instituted proceedings for his arrest on execution. On April 7, 1925, Phillips, having defaulted on those proceedings, was arrested upon the execution. There was then due thereon $944.37. On that day, with the defendant as surety, Phillips, as principal debtor, pursuant to G. L. c. 224, § 20, entered into a recognizance to the plaintiff in $1,100, that within thirty days he would deliver himself up for examination before a district court giving the statutory notice of time and place, would appear at the time fixed for examination and from time to time until it was concluded, and would not depart without leave, not making any default, and would abide the final action of the court. On May 4, giving due notice of time and place, he delivered himself up; and May 7 was fixed as the time for examination. On May 5 he filed a petition in bankruptcy and was adjudicated bankrupt. The plaintiff's judgment claim was scheduled as a debt, was provable at the proceedings and would be discharged by the discharge if obtained. On May 7, Phillips appeared at the time and place fixed for his examination, the plaintiff, by attorney, being present, and filed a certificate of the proceedings in bankruptcy. The proceedings in the examination were stayed and continued by the court till September 8. In June the plaintiff proved its claim in the bankruptcy proceedings. On September 8 the plaintiff appeared, but made no motion for default, though Phillips did not appear. The court further stayed and continued the proceedings until January 11, 1926. On the latter day, Phillips again did not appear. The plaintiff was present by attorney. The bankruptcy proceedings were stated to the court and, by its order, these proceedings were further stayed and continued to February 11, on which day the plaintiff's attorney appeared and, Phillips not appearing and his examination not being begun, requested a default. The default was entered by the court and is the default insisted upon in this action to charge the surety. No dividend has been declared or paid upon the claim.

On April 17, 1926, Phillips applied for his discharge. No creditor objected, but upon representation by the trustee the application was not then acted upon and it is still pending, no discharge having been either denied or granted.

The judge in the superior court found that Phillips had defaulted and ordered judgment against the defendant in the penal sum of the recognizance, execution to issue for $1,045.91, the amount of the judgment, interest and costs, which he found due in equity and good conscience. The defendant appealed.

He contends that the municipal court was without jurisdiction to declare the defendant in default at a time when it had no power to commit the principal debtor to jail in a civil proceeding solely directed to that end; that by proving its claim in bankruptcy and by failing to ask defaults before February 11, 1926, the plaintiff waived the nonappearance of the principal and so discharged the surety; that by proving its claim against the principal's bankrupt estate, the plaintiff made an election of claims which precludes any subsequent proceedings against the surety; and that if anything is due in good conscience and equity it is only a nominal sum.

The principal had been taken on execution. He had secured a period of liberty by means of the recognizance. Thereafter the recognizance stood as security for payment in place of the execution. Morgan v. Curley, 142 Mass. 107, 109, 7 N. E. 726. If a breach occurred the right to enforce it became absolute. The creditor's only remedy thenceforward was upon it. Whatever the creditor could have obtained from the execution he became entitled to have from the surety on the recognizance; and the measure of his recovery was what the execution might have given him at the moment the breach of the recognizance took place. Non constat he could not have obtained the amount of the execution. Accordingly, our statute (G. L. c. 224, § 52) provides that execution on the judgment for breach shall not be less than that amount. Here there can be no dispute that the principal has not performed the condition of the recognizance. On three occasions he failed to attend at...