Tarr v. Davis

• Decision Date: 01 January 1935
• Citation: 176 A. 407
• Parties: TARR v. DAVIS et al.
• Court: Maine Supreme Court

176 A. 407

TARR

v. DAVIS et al.

Supreme Judicial Court of Maine.

Jan. 1, 1935.

Exceptions from Superior Court, Androscoggin County.

Action of debt by Alice N. Tarr against Violet C. Davis and others, as principal and sureties on a bond. The case was referred with a right to exceptions reserved. The referee found for plaintiff, and to the acceptance of his report exceptions were taken and brought to Supreme Judicial Court Exception sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.

Berman & Bennan, of Lewiston, for plaintiff.

Frank Linnell, of Auburn, for defendant Davis.

Albert E. Verrill, of Auburn, and Harold L. Redding, of Lewiston, for defendant Moore.

Clifford & Clifford, of Lewiston, for defendant Breen.

THAXTER, Justice.

This is an action of debt against the principal and sureties on a bond. The defendant Violet C. Davis, in an action of tort brought by the plaintiff, had been arrested on a capias writ; and the bond in question was given in accordance with the provisions of Rev. St. 1930, c. 124, § 15, to secure her release. The condition of the bond was that the principal would within fifteen days after the rendition of judgment against her, or after the adjournment of the court in which it should be rendered, submit herself to examination, and make on oath a true disclosure of her business affairs and property, and abide the order of the justices thereto. The plea of the defendants is the general issue with a brief statement setting forth a full compliance by the principal with the condition of the bond with respect to her disclosure, and stating that she received the benefit of the poor debtor's oath as provided by Rev. St. 1930, c. 124, § 55. There is also a further plea that the plaintiff is estopped to deny the performance by the obligee of the condition of the bond.

The case was referred with a right to exceptions reserved. The referee found for the plaintiff in the sum of $1,000, the amount of the judgment in the original action; and, to the acceptance of his report, exceptions were taken, which are now before us.

The case is important in that it shows a misunderstanding by certain members of the bar of a statute enacted many years ago, which concerns very vitally the liberty of the individual. It is admitted even by counsel for the plaintiff that the principal in the bond did all that she could to bring herself within the protection of the statute, and that, if she has failed, it is because of a defect in the legislation in question.

After the rendition of judgment, the defendant in the original action proceeded in accordance with sections 4 and 16 of the statute in question; and a citation was duly issued to the creditor, who selected a justice to sit with one chosen by the defendant to hear her disclosure. The justices met on May 11, 1933, organized, and proceeded with the hearing. After the examination of the defendant had been completed, at the request of the attorney for the creditor, an adjournment was taken for three days exclusive of Sunday to May 15, 1933, to allow the creditor to present further testimony and for further cross-examination of the debtor. To this point it is conceded by all that the proceedings were regular in every respect. At the adjourned hearing neither the creditor nor her attorney nor her justice was present. The justice in attendance communicated with the absent justice, who stated that he understood that another continuance had been agreed on and requested a further adjournment. This was refused. Under the terms of Rev. St. 1930, c. 124, § 5, it is provided that no adjournments shall exceed three days in the whole, exclusive of Sundays. It was rightly determined by those present that a further continuance beyond such period would preclude the debtor from performing the condition of her bond. Fales v. Goodhue, 25 Me. 423, 426. Thereupon the officer in charge of the debtor, proceeding in accordance with the provisions of section 67 of the above statute, chose a justice to act in place of him who failed to appear. The new justice attended the hearing, examined the debtor anew, and it was determined by the court as reconstituted that the defendant was entitled to the statutory oath. This was accordingly administered, the certificate filed, and the debtor discharged.

The plaintiff now contends that the condition contemplated by the statute, which authorizes the summoning of an additional justice, had not arisen, that accordingly there was no valid court to act, and that the condition of the bond had not been complied with. This brings us to a consideration of the provisions of section 67, under which the defendants claim that the justices derived their authority. This section reads as follows:

"One of the justices to hear a disclosure, may be chosen by the debtor, and the other by the creditor, his agent, or attorney; and if at the time appointed, he refuses, or unreasonably neglects to appoint, or to procure his attendance, the other may be chosen by an officer who has the debtor in charge, or if the debtor is not in charge, the officer who might serve the precept on which he was arrested; and in such case, the justice chosen by the debtor, if he deems it necessary, may adjourn once, not exceeding twenty-four hours, Sundays excluded, to enable the debtor to procure the attendance of another justice. If the justices do not agree, they may choose a third; if they cannot agree on a third, such officer may choose him; and a majority may decide."

The original return of the disclosure commissioners states that the reason for calling in a new justice was because of a disagreement between the first two appointed. This was clearly erroneous, because there was no disagreement which under the provisions of section 67 would justify the summoning of a new member of the court. An amended return was, however, filed which correctly set forth that the new justice was summoned because of the failure of the one chosen by the creditor to attend.

The contention of plaintiff's counsel, in which he has been sustained by the referee, is that the provisions of the statute in question, which authorize the summoning of a new justice, apply only to the first meeting, when the court is organized, and that accordingly after such organization there was no obligation on the part of this creditor to see that her justice was in attendance at any adjournment,

A heavy responsibility rests on those chosen as members of a disclosure tribunal. In their hands rests the liberty of the individual who appears before them. At a time, when, because of conditions beyond their control, many persons are unable to meet, when due, claims against them, it is more than ever a duty to see that rights guaranteed them by our statutes shall be respected. The justice in this instance furnished no good reason for his failure to attend the adjourned hearing. He states that he thought that there was to be a further continuance, that when he found out that there had been no agreement on this point, he started for the...