Stathopoulos v. Reeksting

• Decision Date: 23 May 1925
• Citation: 252 Mass. 542,147 N.E. 853
• Parties: STATHOPOULOS v. REEKSTING et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 542

147 N.E. 853

STATHOPOULOS

v.REEKSTING et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1925.

Appeal from Superior Court, Middlesex County; Marcus Morton, Judge.

Suit by Aristides A. Stathopoulos against Theodore A. Reeksting and the Gillette Safety Razor Company. Decree for plaintiff, and defendant Reeksting appeals. Affirmed.

M. R. Flynn, of Malden, for appellant.

J. C. Johnston and G. K. Richardson, both of Boston, for appellee.

WAIT, J.

November 2, 1923, the defendant Reeksting made a promissory note payable to the plaintiff, Stathopoulos. The note was secured by a mortgage of personal property. November 30, 1923, one Branis, in proceedings in equity against Reeksting and Stathopoulos begun November 10, 1923, obtained an order restraining Reeksting from paying Stathopoulos anything upon the note, and Stathopoulos from receiving and in any way enforcing payment by Reeksting until a hearing be had on December 6, 1923, on an order to show cause why an injunction against such payment and enforcement should not issue. On said December 6, the court ordered the injunction to be continued ‘until further order of the court.’ A hearing upon the merits of the bill of Branis was had; and on April 2, 1924, the judge found for the defendants and entered an order for a decree, in form following: ‘Let the defendant prepare a decree dismissing the bill with costs.’ A final decree in accord therewith was entered on June 19, 1924, from which no appeal was claimed. About May 1, 1924, Stathopoulos began proceedings to foreclose his mortgage for nonpayment of installments upon the note which had thereby become due. No payments in accord with the terms of the note had been made by Reeksting, who was notified of the proceedings to foreclose. A foreclosure sale was made on May 29, 1924, after an adjournment from May 9, of which Reeksting had notice. The property was sold for $300. The expense of the sale was $50. The property was delivered by Stathopoulos some two or three weeks thereafter.

On February 29, 1924, the answer alleges, Stathopoulos brought a bill in equity against Reeksting to establish the debt created by the note, alleging default in payments due in December, 1923, and January and February, 1924. The bill was dismissed on November 20, 1924; and the present bill was brought forthwith to establish the same debt, but alleging default in payments due in each month from December, 1923, through November, 1924. In both bills last referred to, the Gillette Safety Razor Company was made a defendant; and both sought to reach and apply stock held by Reeksting in that corporation. The defense of Reeksting is that until June 19, 1924, he was restrained by the injunction in the Branis suit from making payment on the note; and that Stathopoulos does not come into court with clean hands, since he was likewise restrained until June 19, 1924, from bringing suit or making a foreclosure sale to enforce payment of the note.

[1][2] At the hearing...