Scourtis v. Bililies

Citation335 Mass. 290,139 N.E.2d 524
Parties. Andros BILILIES and others. Supreme Judicial Court of Massachusetts, Suffolk
Decision Date11 January 1957
CourtUnited States State Supreme Judicial Court of Massachusetts

James I. Yoffa, Boston (Faye G. Stone, Boston, with him), for plaintiff.

No argument nor brief for defendants.

Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.

WILKINS, Chief Justice.

On February 24, 1953, the plaintiff recovered a judgment for $5,493.55 against the defendant Bililies (hereinafter called the defendant) in the Superior Court. On May 23, 1955, when the judgment with interest of $739.22 amounted to $6,232.77, the defendant paid the plaintiff $5,000, leaving a balance of $1,232.77 and costs. The foregoing facts are alleged in the bill and admitted in the defendant's answer. Bancroft v. Cook, 264 Mass. 343, 348, 162 N.E. 691; Markus v. Boston Edison Co., 317 Mass. 1, 7, 56 N.E.2d 910; Zaleski v. Zaleski, 330 Mass. 132, 134-135, 111 N.E.2d 451.

The present suit is to reach and apply the interest of the defendant in the capital stock of the defendant Pieroni, Inc., and in a certain partnership, called Pieroni's in which the individual defendants are the other partners. G.L.(Ter.Ed.) c. 214, § 3(7, 8) The bill has been taken pro confesso against the defendant corporation and the individual defendants associated in the partnership with the defendant. The plaintiff appeals from a final decree dismissing the bill.

The judge in a report of the material facts found by him set forth the reasons why he ordered the bill dismissed. On April 2, 1954, the plaintiff made application for supplementary process in the Municipal Court of Bookline. G.L.(Ter.Ed.) c. 224, §§ 14-17, which were introduced into our law by St.1927, c. 334, § 2. Thereafter the parties made frequent appearances before the judge of that court, and by his order the payment of $5,000 hereinbefore mentioned was made. The balance of the judgment being approximately $1,500, the Municipal Court judge on February 28, 1956, ordered the defendant to make weekly payments of $5. The plaintiff then caused the supplementary proceedings to be dismissed on February 28, 1956. The plaintiff entered the present suit in the Superior Court on August 3, 1955.

In his report of material facts the trial judge stated that he found and ruled that the plaintiff seeks to circumvent the order of the Municipal Court for weekly payments; that the Municipal Court judge was warranted in believing that the proceedings before him were designed to end the controversy; that the defendant acted in good faith in paying $5,000 in the belief that it would 'terminate the then pending claim as represented by the supplementary process petition'; that the Municipal Court Judge sought to effect a definite adjustment; and that the final order for weekly payments was a further effort by him 'to terminate definitely and finally the claim.' 'Upon all the evidence [which was presented in the form of statements of counsel] and the inferences to be drawn therefrom, I find and rule the petitioner is not entitled to proceed further in the instant action, which I ordered dismissed.'

This ruling was erroneous. The stated grounds are immaterial. The purpose of c. 224, §§ 14-18, is to enable a creditor to obtain payment of a judgment and not to adjudicate procedural rights in such a way as to deprive him of a right to enforce payment by other statutory remedies. See Giarruso v. Payson, 272 Mass....

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4 cases
  • Freeman v. Heiman, 681-69.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 28 Mayo 1970
    ...Trust Company v. Ross, 39 Misc.2d 41, 239 N.Y.S.2d 930 (1963); Levine v. Simon, Sup., 212 N.Y.S.2d 888 (1961); Scourtis v. Bililies, 335 Mass. 290, 139 N.E.2d 524 (1957); Fino v. Municipal Court of City of Boston, 326 Mass. 277, 93 N.E.2d 558 (1950); McDermott v. Justices of Municipal Court......
  • Mayone v. Municipal Court of City of Boston
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 1 Mayo 1957
    ...be made expressly dismissing them * * *.' Fino v. Municipal Court of the City of Boston, 326 Mass. 277, 93 N.E.2d 558; Scourtis v. Bililies, 335 Mass. ----, 139 N.E.2d 524. The debtor failed to redeem the property within a year as provided in the assignment and the creditor, after notice, s......
  • De Nunzio v. City Manager of Cambridge
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 Noviembre 1960
    ...Bancroft v. Cook, 264 Mass. 343, 348, 162 N.E. 691; Harvey v. Crooker, 267 Mass. 279, 282-283, 166 N.E. 828. Scourtis v. Bililies, 335 Mass. 290, 139 N.E.2d 524. Willett v. Webster, 337 Mass. 98, 101, 148 N.E.2d 267. It may be questioned whether a finding of statutory approval was intended,......
  • Federal Refinance Co. v. Davis
    • United States
    • Massachusetts Superior Court
    • 16 Junio 1998
    ...v. Bililies, 335 Mass. 290 (1957). However, the facts of that case were substantially different from the facts in the present case. In Scourtis v. Bililies, the moved to have supplementary process proceedings dismissed and then the plaintiff initiated an action in superior court to reach an......

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