Swig v. Tremont Trust Co., 1845.
| Citation | 8 F.2d 943 |
| Decision Date | 21 November 1925 |
| Docket Number | No. 1845.,1845. |
| Parties | SWIG v. TREMONT TRUST CO. |
| Court | U.S. Court of Appeals — First Circuit |
Asa P. French and George W. Abele, both of Boston, Mass., for appellant.
Raymond S. Wilkins, of Boston, Mass. (J. V. Spalding, of Boston, Mass., on the brief), for appellee.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
This is a bill in equity in which the plaintiff seeks to enjoin the Tremont Trust Company from executing a judgment, which it had obtained against him in the superior court of Massachusetts, until the question of his discharge is determined, on the ground that the action in which the trust company obtained the judgment was an action of contract upon a promissory note; that said judgment was founded upon a claim or debt to which a discharge in bankruptcy would be a bar; that said debt was not one within any of the exceptions in section 17 of the Bankruptcy Act (Comp. St. § 9601); and that the trust company threatened and intended to take out and enforce a writ of execution against him upon the judgment.
In its answer the defendant admitted that the plaintiff had filed an application for his discharge (since obtained); that it brought the action of contract upon a promissory note of which the petitioner and others were makers; that the suit resulted in a judgment against the petitioner in the sum of $27,672.13; that the plaintiff was not present at the trial, introduced no testimony, and interposed no defense, except to file an answer denying liability. It denied that the judgment was founded on a debt or claim to which a discharge in bankruptcy would be a bar; denied that no issue of fraud on the part of the petitioner in the creation of the debt was pleaded or tried between the plaintiff and the trust company; denied that said debt was not within any of the exceptions specified in section 17 of the Bankruptcy Act (Comp. St. § 9601); admitted that it had taken out and held a writ of execution against the plaintiff on the judgment, but denied that it had threatened and intended to enforce the judgment. And, further answering, among other things, it said that the defendants to said action in the state court, other than the present plaintiff, filed answers alleging fraud on the part of the officers of the Tremont Trust Company in obtaining their signatures to the note and negotiating it to the trust company; that the officers of the trust company whose fraud was alleged in these answers were the plaintiff, the vice president and managing director of the trust company, and his son, Benjamin H. Swig, treasurer of the trust company, who, in the matter in question, acted under the direction of the plaintiff; that on September 29, 1923, the plaintiff filed a motion in the superior court to continue said cause for judgment; that thereafter a hearing was had on said motion; that a copy of the record in the Supreme Judicial Court of Massachusetts was submitted at the hearing on the motion as evidence of the facts litigated at the trial in the superior court prior to the transfer of the case to the Supreme Judicial Court; that the question argued on the motion was whether the claim or debt of the trust company against Swig would be barred by a discharge in bankruptcy under section 17 of the Bankruptcy Act (Comp. St. § 9601); that the superior court denied the motion and as a result of the proceedings in that court it was res judicata that the judgment arose out of the fraud of the plaintiff and would not be barred.
In the District Court it was found that, while the plaintiff was not present at the trial in the superior court and took no part in it, his trustee in bankruptcy was present with counsel; that at the close of the trial in the superior court a verdict was directed for the trust company as against Simon Swig, the present plaintiff, and in favor of all the other defendants; that the case was reported to the Supreme Judicial Court; that, after the Supreme Judicial Court had rendered a decision affirming the action of the trial court in directing the verdicts, a writ of execution was applied for in the superior court, and the motion above referred to was presented and denied. With reference to the decision on the motion, the District Court ruled that it did not preclude the plaintiff, Simon Swig, in this proceeding, from showing that the judgment debt was barred by the discharge, but held that the decision of the Supreme Judicial Court in Tremont Trust Co. v. Noyes et al., 246 Mass. 197, 141 N. E. 93, disclosed facts that showed that the debt would be excepted from the bankrupt's discharge, if one was granted, by section 17 of the Bankruptcy Act (Comp. St. § 9601), and that the plaintiff was precluded by the facts set forth in the decision in Tremont Trust Co. v. Noyes et al., supra, from...
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