Golden v. Blaskopf

If the parties to an action file in court an agreement that judgment may be entered on a certain day, and on that day the defendant files a suggestion of his bankruptcy, which is not brought to the attention of the court until after judgment has been entered, it is within the discretion of the court, under the Gen. Sts. c. 146, § 21, to grant a writ of review to the defendant to enable him to set up a composition in bankruptcy as a defence.

Writ of review to reverse a judgment recovered by the defendant in review against the plaintiff in review. Trial in the Superior Court, without a jury, before Pitman, J., who allowed a bill of exceptions in substance as follows: The original action was begun by an attachment of the defendant’s property on March 13, 1876. The defendant gave a bond to dissolve the attachment, and the writ was returned and entered. After the defendant had filed his answer, denying generally his liability, and at the time when the case was about to be reached for trial, the attorneys for the parties made an agree-menu that judgment should be entered for the plaintiff, for the amount claimed, on July 5, 1876. This agreement was filed in court on June 10, 1876, and minuted on the docket. On July 3, 1876, the defendant filed a voluntary petition in bankruptcy in the District Court of the United States, and on July 5, 1876, about ten o’clock in the forenoon, filed a suggestion of bankruptcy in the Superior Court. On July 7, 1876, execution issued. On August 8, 1876, the defendant petitioned for a writ of review, which was granted, and this writ of review issued. The defendant in review pleaded in abatement the agreement for judgment and a judgment accordingly; the plaintiff in' review filed a replication, setting up his composition with his creditors in bankruptcy; and it was agreed that this, if now open to the plaintiff in review, was a valid defence to the original action. The defendant in review asked the judge to rule that the agreement for judgment on July 5, 1876, was a waiver of the right of review; that, even if the suggestion of bankruptcy was filed in court, it could not avail the plaintiff in review, unless he brought a motion for continuance to the notice of the court before the end of the term at which judgment was entered; and that the plaintiff in review is not entitled to a review as matter of law. The judge refused so to rule; but ruled that all matters of equitable consideration or of discretion had been open upon the petition for a review, and that in this trial on the writ of review the parties stood upon their strict legal rights; that, the suggestion of bankruptcy having been filed prior to the rendering of the original judgment, although not called to the attention of the court, the plea of discharge by the resolution of compo-: sition, as set up, must prevail; found for the plaintiff in review, and ordered judgment accordingly. The defendant in review alleged exceptions.