Smith v. Miller

This is an action upon a judgment; the writ is dated June 10, 1916. The defendant Fishbein gave a bond with sureties to dissolve an attachment made upon the writ and after-wards, on August 24, 1916, was adjudicated bankrupt.

The case was heard upon the merits by a judge of the Superior Court, sitting without a jury. At that hearing Fishbein filed a suggestion of bankruptcy, together with a duly certified copy of the adjudication, and also.presented a motion for a continuance of the action, so far as it related to him, to await further proceedings in the bankruptcy court. After a hearing, this motion was denied; a finding was made in .favor of the plaintiff against all the defendants, and a stay of execution was ordered as against the defendant Fishbein. To the ruling denying the motion for a continuance, Fishbein excepted, and this exception raises the only question presented.

The bankruptcy act (U. S. St. 1898, c. 541, § 11) requires a stay of an action pending upon a claim to which a discharge would be a bar, until after an adjudication or the dismissal of the petition; but whether such an action is to be further stayed after an adjudication of bankruptcy, is to be determined by the trial judge in the exercise of his discretion.

In construing § 11 of the bankruptcy act, which deals with this question, this court said in the case of Rosenthal v. Nove, 175 Mass. 559, at page 563, “we hold that the court in which a suit against a bankrupt is pending is not, after the adjudication of bankruptcy, bound to stay proceedings further therein, while it may do so if, and to such an extent as, justice may require. The action is not absolutely barred, and the court has power to proceed to *189judgment.” Feigenspan v. McDonnell, 201 Mass. 341. Rogers v. Abbot, 206 Mass. 270. Parker v. Murphy, 215 Mass. 72. In re Maaget, 173 Fed. Rep. 232.

The discretion vested in the trial court by § 11 of the bankruptcy act does not depend upon the question whether an attachment was made in the pending action within, or more than four months before the filing of the petition in bankruptcy, or whether any attachment has been made. It follows that the defendant was not entitled as of right to a continuance of the action after he was adjudicated a bankrupt.

The plaintiff asks that judgment be entered in his favor as of November 6,1916, the date when such judgment would have been entered if exceptions had not been filed. This request cannot be granted. It should be made by motion in the Superior Court where the case is pending.

Exceptions overruled.