126 Mass. 523 | Mass. | 1879
The objections taken would have been more properly presented at the hearing of the petition for a review, but, assuming them to be now open, they cannot avail.
The judge before whom the case was tried without a jury has found as matter of fact that the suggestion of bankruptcy was filed before the rendering of the original judgment. If that suggestion had been brought to the notice of the court before the actual entry of judgment, the case must have been continued to await the result of the proceedings in bankruptcy, and the suggestion could not have been defeated by an entry of judgment nunc pro tuna. U. S. Rev. Sts. § 5106. Ray v. Wight, 119 Mass. 426. Clinton National Bank v. Taylor, 120 Mass. 124. Page v Cole, 123 Mass. 93. The suggestion of bankruptcy not having been brought to the notice of the court until after judgment had been entered, a review might properly be granted for the purpose of enabling the proceedings in bankruptcy to be set up by way of defence. Gen. Sts. c. 146, § 21. Todd v. Barton, 117 Mass. 291. Shurtleff v. Thompson, 63 Maine, 118.
It is contended, upon the authority of Edwards v. Reginam, 9 Exch. 628, and Wright v. Mills, 4 H. & N. 488, that the judgment took effect as of the earliest minute of the day on which it was rendered, and therefore in law took precedence of the suggestion of bankruptcy filed at ten o’clock on the same day. It is not clear that it would be allowed such an effect in England in an action between individuals. Green v. Laurie, 1 Exch. 335. Robson on Bankruptcy (3d ed.) 504. In this country, fractions of a day are usually regarded, when necessary for the ends of justice. Bigelow v. Willson, 1 Pick. 485, 495. Brainard v. Bushnell, 11 Conn. 16. Lemon v. Staats, 1 Cowen, 592. And if the judgment could by a technical rule have the unjust operation contended for, it was certainly within the discretion of the court to grant a writ of review in order to prevent that consequence.
The previous agreement of the parties for the entry of judgment, although it might, according to the decision in Hall v. Wolcott, 10 Mass. 218, have been a waiver of a review as of right, could not control the discretion of the court in granting a review upon petition.
Exceptions overruled.