Smith v. Miller
| Decision Date | 01 March 1917 |
| Citation | 226 Mass. 187 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CHARLES F. SMITH v. JOSEPH MILLER & others. |
January 18, 1917.
Present: RUGG, C.
J., LORING, BRALEY DE COURCY, & CROSBY, JJ.
Bankruptcy. Practice, Civil, Exceptions, Entry of judgment.
Where in an action at law against three defendants one of the defendants gave a bond to dissolve an attachment made on the writ and afterwards was adjudicated a bankrupt and filed a suggestion of bankruptcy and moved for a continuance of the action so far as it related to him, a judge of the Superior Court before whom the case was tried without a jury, denied the motion for a continuance, made a finding for the plaintiff against all the defendants and ordered a stay of execution against the bankrupt defendant; and it was held that under Section 11 a of the bankruptcy act of 1898 the judge had discretionary power to deny the motion for a continuance made after the adjudication in bankruptcy, and therefore that the bankrupt was not entitled as of right to a continuance of the action after he was adjudicated a bankrupt.
Where upon exceptions, taken by a defendant at the trial of an action of law in the Superior Court, which were argued before this court, the plaintiff prevails and the exceptions are overruled, this court cannot grant a motion of the plaintiff made in the full court at the time of the argument upon the exceptions, that judgment be entered in his favor as of a certain date when such judgment would have been entered if the exceptions had not been filed, because such a motion should be made in the Superior Court where the action is pending.
CONTRACT against three defendants upon a judgment obtained against them in a previous action. Writ dated June 10, 1916.
In the Superior Court the case was tried before Hamilton, J., without a jury. The material facts and the course of proceedings in regard to the defendant Fishbein, who gave a bond with sureties to dissolve an attachment and afterwards was adjudicated a bankrupt, are stated in the opinion. The judge denied the motion of that defendant for a continuance as there stated. He found for the plaintiff against all the defendants in the sum of $154.43, and ordered a stay of execution as against the defendant Fishbein. That defendant alleged exceptions.
The case was submitted on briefs.
Section 11 a of the bankruptcy act of 1898 is as follows: "A suit which is founded upon a claim from which a discharge would be a release, and which is pending against a person at the time of the filing of a petition against him, shall be stayed until after an adjudication or the dismissal of the petition; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined."
M. Jacobs & R.
F. Albert, for the defendant Fishbein.
C. F. Smith, pro se.
This is an action upon a judgment; the writ is dated ...
To continue reading
Request your trial
-
Allard v. Estes
... ... 78; Bradford v. Rice, 102 Mass. 472, 3 ... Am.Rep. 483; Page v. Cole, 123 Mass. 93; Parker ... v. Murphy, 215 Mass. 72, 74, 102 N.E. 85; Smith v ... Miller, 226 Mass. 187, 188, 115 N.E. 243. This is the ... practice prevailing generally in other jurisdictions ... State v. Broaddus, 234 ... ...
-
MANUFACTURERS'FINANCE CORPORATION v. Vye-Neill Co., 2744
...Clothing Co. v. Shopnick, 249 Mass. 459, 144 N. E. 392; Barry v. N. Y. Holding & Cons. Co., 229 Mass. 308, 118 N. E. 639; Smith v. Miller, 226 Mass. 187, 115 N. E. 243; Rosenthal v. Nove, 175 Mass. 559, 563, 56 N. E. 884, 78 Am. St. Rep. 512; Feigenspan v. McDonnell, 201 Mass. 341, 346, 87 ......
-
Connell v. Walker
...if within that time such person applies for a discharge, then until the question of such discharge is determined.' 3 See Smith v. Miller, 226 Mass. 187, 115 N.E. 243; Star Braiding Co. v. Steinen Dyeing Co., 44 R.I. 8, 114 A. 129; Collier, Bankruptcy (13th Ed.) 414. 4 Cf. Hill v. Harding, 1......
-
Irving Levitt Co., Inc. v. Sudbury Management Associates, Inc.
...Feigenspan v. McDonnell, 201 Mass. 341, 346, 87 N.E. 624 (1909); Rogers v. Abbot, 206 Mass. 270, 92 N.E. 472 (1910); Smith v. Miller, 226 Mass. 187, 188, 115 N.E. 243 (1917); Berry Clothing Co. v. Shopnick, 249 Mass. 459, 144 N.E. 392 (1924). The present bankruptcy law, as indicated, has no......