Ruscio v. Popoli

• Decision Date: 03 January 1930
• Parties: DI RUSCIO v. POPOLI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 482

169 N.E. 548

DI RUSCIO

v.POPOLI.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 3, 1930.

Appeal from District Court of Eastern Middlesex, Appellate Division; Robert W. Frost, Special Justice.

Action by Frank Di Ruscio against Andrew Popoli. Judgment for plaintiff, and, from an order dismissing the report, defendant appeals. Order dismissed, and issuance of execution for nominal damages ordered.H. Kisloff, of Dorchester, for appellant.

M. Spector, of Boston, for appellee.

RUGG, C. J.

This is an action of contract wherein the plaintiff seeks to recover judgment for the penal sum on a poor debtor's recognizance and to have determined the amount for which execution ought to issue. The case was here at an earlier stage in 165 N. E. 403. The material facts and history of proceedings up to that time there are narrated in substance as follows: The plaintiff recovered judgment against Silvio D'Aloisio in a substantial sum for damages, and costs. D'Aloisio was cited to appear in the poor debtor court on a citation returnable June 4, 1926. He defaulted, and thereafter he entered into a recognizance with Popoli, the defendant here, as surety for the debtor, the condition of the recognizance being that D'Aloisio, within thirty days after his arrest, would deliver himself up for examination. Within the thirty days D'Aloisio took out a citation returnable September 14, 1926. The matter came on to be heard on that day, and upon the suggestion of bankruptcy on the part of said D'Aloisio, the proceedings were continued to January 17, 1927, at 9:30 a. m. On this date at 10:30 a. m. the creditor appeared, but the debtor failed to appear, and was not represented by counsel. At 2:30 p. m. the debtor was represented by counsel, but did not appear personally, and the case was again continued to January 18, 1927, at 9:30 a. m., counsel for the creditor objecting to this continuance. On January 18 the oath for the relief of poor debtors was administered. The only question at that time in issue was whether there had been a breach of the recognizance. It was held as matter of law that there had been a breach. The decision of the district court was reversed and it was ordered that judgment be entered for the plaintiff in the penal sum of the bond. That result was reached notwithstanding the fact that there had been suggestion of bankruptcy on the part of the debtor and continuance for that reason to a future date and on that date, being the day of the breach of the recognizance, certificate of the debtor's discharge in bankruptcy was filed. No question was raised on that record as to the discharge in bankruptcy. The single issue there raised was whether there had been a breach of the recognizance by failure to appear in court in accordance with the terms of the recognizance. No argument was addressed to the court at that time founded on the bankruptcy. That appears from an examination of the original papers as well as from the opinion itself, containing no reference to the subject. The defendant not appearing according to the tenor of his recognizance, and not proving his discharge in bankruptcy, rightly was defaulted on his recognizance. He did not avail himself of the privileges accorded him by the law properly to plead and press his discharge in bankruptcy as a bar to the poor debtor proceedings. Commissioner of Banks v. Tremont Trust Co. (Mass.) 166 N. E. 848. The writ in the present case was sued out on November 7, 1927, and was returnable to court on November 19, 1927. The declaration of the plaintiff filed on the return day alleged the execution of the recognizance, the breach thereof, and the consequent liability of the defendant in the penal sum. The answer of the defendant set up a general denial and payment. It made no reference to the bankruptcy or the discharge in bankruptcy of the principal debtor. This was the state of the pleadings when the case was here before. The bankruptcy and the discharge in bankruptcy were neither pleaded nor argued when the case was here as reported in 165 N. E. 403. No mention thereof is made in that opinion. Manifestly that decision is no adjudication as to bankruptcy. Vigeant v. Postal Cable Telegraph Co., 260 Mass. 335, 343, 344, 157 N. E. 651, 53 A. L. R. 867, and cases there cited. After the rescript pursuant to the earlier opinion ordering that judgment be entered for the amount of the penal sum of the recognizance,the case came on for further hearing in the district court on the assessment of damages. Thereupon the defendant as surety on the recognizance filed what was entitled ‘a plea in bar.’ He set forth therein that the principal debtor in the recognizance was granted his discharge in bankruptcy on December 14, 1926, whereby he was discharged from all debts and claims provable in bankruptcy existing on August 30, 1926, and that thus the principal debtor had been discharged from the debt due the plaintiff before the breach of the recognizance. The defendant requested a ruling that the discharge of the principal debtor in bankruptcy discharged the defendant as surety from liability as to all breaches of the recognizance occurring after the discharge. This request was denied ‘as being either inapplicable or incorrect or both.’ No findings of fact were made. Damages were assessed and the amount for which execution should issue was determined to be a substantial sum. Since this is an action at law and not a suit in equity, the so-called ‘plea in bar’ filed by the defendant contained matter proper for an answer. It will be dealt with according to its true nature. G. L. c. 231, §§ 25, 26, 27, 28; White v. E. T. Slattery Co., 236 Mass. 28, 30, 31, 32, 127 N. E. 597, and cases cited. The record is interpreted to mean that this pleading, in substance an amendment to the answer, was allowed to be filed by the court. Lowrie v. Castle, 225 Mass. 37, 39, 113 N. E. 206;Massachusetts Gasoline & Oil Co. v. Go Gas Co. (Mass.) 166 N. E. 563. The trial judge treated it as raising matter to be decided by him. It has been argued at the bar on that footing. This decision rests on that basis.

It appears that the plaintiff's claim was founded on a judgment recovered against the principal debtor on May 21, 1926. The nature of the cause of action on which that judgment was entered is not disclosed. It has not been suggested that this judgment was not barred by the discharge in bankruptcy. Therefore questions which possibly might arise in that connection are laid to one side. See Act Cong. of July 1, 1898, c. 541, 30 U. S. Sts. at Large, p. 544, as finally amended as to section 17 by Act of January 7, 1922, c. 22, 42 U. S. Sts. at Large, part 1, p. 354 (11 USCA § 35); Frost v. Thompson, 219 Mass. 360, 367, 106 N. E. 1009.

The question now presented for determination is whether the defendant as surety upon the poor debtor recognizance can interpose at this stage of these proceedings the defence of a discharge in bankruptcy granted to the principal debtor before the default on the recognizance. Of course that defence, if relied upon, ought to have been pleaded when the case came on for its first bearing on December 8, 1927. In general a case ought to be tried at one time on all its issues and not heard in pieces, although special circumstances occasionally may justify a different course. There are strong objections to attempts at splitting defences as well as splitting causes of action. Canning v. Shippee, 246 Mass. 338, 141 N. E. 79. But the defence is open because, although the filing of the amendment to the answer under the name ‘plea in bar’ might have been denied by the court, Hirsh v. Beard, 200 Mass. 569, 86 N. E. 954, we interpret the record to mean that it was allowed. It set up a defence respecting the amount of the execution pursuant to the judgment. By G. L. c. 224, § 52, such ‘execution shall issue for so much’ of the penalty of the bond ‘only as may be justly and equitably due.’ Stated in somewhat different form the question for decision is whether, after the entry of judgment for the penal sum of the recognizance, the surety may show the discharge in bankruptcy of the principal debtor before the default on the recognizance to affect the amount for which execution ought to issue. The defendant, by becoming surety on...