Radovsky v. Sperling

• Decision Date: 05 January 1905
• Citation: 72 N.E. 949,187 Mass. 202
• Parties: RADOVSKY v. SPERLING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 202

72 N.E. 949

RADOVSKY v. SPERLING et al.

Supreme Judicial Court of Massachusetts, Bristol.

January 5, 1905

COUNSEL

D. R. Radovsky and T. E. Higgins, for plaintiff.

Frank Wasserman, for defendants.

OPINION

HAMMOND J.

This is an action on a poor debtor's recognizance. From the record of the Second District court of Bristol it appears that charges under the first and second clauses of Rev. Laws c. 168, § 17, were filed by a judgment creditor against the defendant Sperling, the judgment debtor; that after a hearing thereon a certificate for his arrest upon the execution was issued; that on November 12, 1903, Sperling was arrested and brought before the court, and that on the same day he, with one Ziman, the other defendant in this case, as his surety entered into the recognizance; that on November 27th Sperling filed in the same court an application for leave to take the oath for the relief of poor debtors, and on the same day notice thereof was issued to the judgment creditor to appear at that court on December 1st and examine the debtor. The record continues as follows: 'On this December 1 1903, the debtor appeared, and, after being duly sworn, was partially examined. The hearing was then continued to December 1, 1903, at two o'clock p. m., at the courtrooms of the Second District court. Then the hearing was adjourned unitl December 2, 1903, at nine o'clock a. m., at the courtrooms of the Second District court. Then the judgment debtor, Sperling, was defaulted, and the oath for the relief of poor debtors was refused.' The evidence offered by the defendants tended to show that on December 5th, Sperling applied to the Third District court of Bristol to take the oath for the relief of poor debtors, and that on December 15th, the creditor, although duly notified, not being present, the oath was administered by a justice of said court to Sperling, and he was discharged from arrest, the judge making the proper certificate thereof. It is contended by the defendants that after Sperling had been defaulted in the first court to which he applied that court had no jurisdiction to proceed further in the matter, and that the order refusing the oath was coram non judice, and therefore that the provision in Rev. Laws, c. 168, § 35, that, if the oath has been refused, another application to take it 'shall not be made within seven days from the hour of such refusal,' is not applicable. We have not found...