79 A. 969 | R.I. | 1911
This is an action of assumpsit brought by one surety upon a bond, given to release personal property from attachment against his co-surety for contribution to the extent of one-half of the sum of $5,625.00, which the plaintiff alleges that he has been obliged to pay to satisfy a verdict which had been found against one John M. Peck, the principal in said bond.
It appears that on the 6th day of February, 1907, Arthur P. Johnson, trustee in bankruptcy of Benjamin W. Comstock, commenced suit against John M. Peck, doing business as the Eastern Dry Goods Company, by issuing a writ of attachment, returnable to the said Superior Court of said county of Providence, on the 23rd day of February, A.D. 1907, and is numbered Law. No. 22645, on the files of the said Superior Court. That certain personal property of the said John M. Peck was attached by Andrew McKenzie, deputy sheriff of said county of Providence, by virtue of said writ of attachment. That on the 8th day of February, 1907, said John M. Peck, as principal; the plaintiff, Joseph E. Fales, and the defendant, John F. McDonald, as sureties, gave bond in the sum of ten thousand dollars to Hunter C. White, sheriff of the said county of Providence, and said Andrew McKenzie, deputy sheriff of the said county of Providence, for the release of said personal property from said writ of attachment. That said case of ArthurP. Johnson, Trustee v. Eastern Dry Goods Company was tried in the Superior Court of said county of Providence before Mr. Justice Charles F. Stearns, and a jury on the 2nd, 3rd, 4th, 5th and 6th days of November, 1908, and a verdict was rendered by the jury in favor of said Arthur P. Johnson, Trustee, for the sum of $6,323.85. That a motion for a new trial was duly filed in the case of Arthur P. Johnson, Trustee, v. Eastern Dry GoodsCompany by said Eastern Dry Goods Company, and was heard and denied by Mr. Justice Charles F. Stearns. That said Eastern Dry Goods Company filed a bill of exceptions to the denial of said action for a new trial, within the time required by law. That said bill of exceptions was assigned for hearing in the Supreme Court May 28th, 1909 by the following agreement: *408
"In the above entitled cause it is agreed that the following entry be made: —
Assigned for hearing May 28, 1909.
(Signed) ALFRED S. JOHNSON DEXTER B. POTTER, Plff's Attorneys.
(Signed) BASSETT RAYMOND, Deft's Attys."
That on the 26th day of May, 1909, the following agreement was filed in the Supreme Court in the case of Arthur P. Johnson,Trustee v. Eastern Dry Goods Company: —
"Supreme Court, May 26, A.D. 1909.
ARTHUR P. JOHNSON, Trustee | | vs. No. Ex. 4173. | EASTERN DRY GOODS COMPANY |
In the above entitled cause it is agreed that the following entry be made: —
Bill of exceptions withdrawn and case remitted to the Superior Court for further proceedings.
(Signed) ALFRED S. JOHNSON DEXTER B. POTTER Plff's Attys. (Signed) BASSETT RAYMOND, Deft's Attys."
That on the 26th day of May, 1909, the following agreement, after said case was remitted to the Superior Court, was filed in the Superior Court in the said case:
"PROVIDENCE, Sc. Superior Court, May 26, A.D. 1909.
ARTHUR P. JOHNSON, Trustee | | vs. No. 22645. | EASTERN DRY GOODS COMPANY |
In the above entitled cause it is agreed that the following entry be made: —
Judgment and execution stayed until June 26, 1909. Upon payment of $5,625.00 on or before June 25, 1909, case to be entered settled; otherwise, execution to be issued on June 26, 1909, for full amount of judgment, interest and costs.
*409(Signed) ALFRED S. JOHNSON DEXTER B. POTTER, Plff's Attys.
(Signed) BASSETT RAYMOND, Deft's Attys. (Signed) CHARLES F. STEARNS, J."
That on the first day of July, 1909, the following agreement was filed in the Superior Court in said case: —
"PROVIDENCE, Sc. Superior Court, July 1, A.D. 1909.
ARTHUR P. JOHNSON, TRUSTEE | | vs. No. 22645. | EASTERN DRY GOODS COMPANY |
In the above entitled cause it is agreed that the following entry be made: —
"Settled, no costs."
(Signed) ALFRED S. JOHNSON DEXTER B. POTTER, Plff's Attys. (Signed) BASSETT RAYMOND, Deft's Attys."
And that said Joseph E. Fales paid to Arthur P. Johnson, Trustee, the sum of $5,625 on the 1st day of July, 1909.
The condition of the bond above referred to is as follows: "Now, therefore, if the final judgment in the action commenced by said writ shall be forthwith paid and satisfied after therendition thereof (in case said judgment shall be rendered against the said defendant), then this obligation shall be null and void; otherwise, shall be and remain in full force and effect."
Upon jury trial in the Superior Court, at the conclusion of testimony upon motion of the defendant, the court directed the jury to return a verdict for the defendant. The plaintiff excepted to this ruling and filed his bill of exceptions which was duly allowed and the case is now before this court for the consideration thereof.
The plaintiff's exceptions are as follows:
"1. The ruling of the court in refusing to direct a verdict for the plaintiff, which said exception appears on page twenty-six of the transcript of testimony.
"2. The ruling of the court in directing a verdict for the defendant. as appears by the exception taken to said ruling on page twenty-six of the transcript of testimony."
The defendant urges the following considerations in support of the ruling of the court:
"1. That a surety who voluntarily pays the debt before *410 he is under legal liability, so to do, cannot enforce contribution against his co-surety.
"2. That final judgment in the attachment suit was neither rendered nor entered, and that final judgment in the attachment suit must be rendered by the court and entered by the clerk of the court before sureties are liable under the bond, under an agreement, as follows: —
"`Judgment and execution stayed until June 26, 1909. Upon payment of $5,625.00 on or before June 25, 1909, case to be entered settled; otherwise, execution to be issued on June 26, 1909, for full amount of judgment, interest and costs.'
"3. That the stay of judgment and execution, for one month, by the creditor and principal debtor, without the knowledge or consent of the surety, after trial of the case and after the bill of exceptions is withdrawn from the Supreme Court and the case is remitted to the Superior Court for further proceedings is an extension of time to the principal debtor and therefore discharges the surety from all liability on an attachment bond."
The correctness of the first proposition may be at once conceded and if it is found to be applicable in the case at bar the plaintiff will have no cause to complain of the ruling of the Superior Court.
The second proposition cannot be disposed of so readily. It involves a consideration of the paper filed in the Superior Court May 26, 1909, in the case of Arthur P. Johnson, Trustee v.Eastern Dry Goods Co. No. 22645. It is an agreement "that the following entry be made." The definition of the word "entry" according to Bouvier Law Dict. is as follows — "In Practice. The placing on record the various proceedings in an action, in technical language and order. The extreme strictness of the old practice is somewhat relaxed, but the term entry is still used in this connection. In the law books the words entry and entered
are frequently used as synonymous with recorded;
"It is to be observed that this is not a case where an agreement for a stay of execution is made concerning a judgment already in force and upon which the judgment creditor at the time of the agreement has the right to take out execution, as inGipson v. Ogden,
For the foregoing reasons we are of the opinion that the justice presiding at the trial in the Superior Court was in error in directing the jury to find a verdict in favor of the defendant, which he did in the following words: "Gentlemen, counsel for *415 both plaintiff and defendant in this case agree that it is a question of law for the court to decide; each contend that a verdict should be directed in their favor. I will direct you to return a verdict in favor of the defendant." As it appears that counsel for plaintiff and defendant agree that it is a question of law for the court to decide and that there is no disputed question of fact for the determination of a jury, the case will be remitted to the Superior Court with direction to enter judgment for the plaintiff in the sum of $2,812.50 with interest thereon from the first day of July, 1909, unless the defendant on the fifth day of June, 1911, at 10 o'clock A.M., can show cause why such judgment should not be entered.