Jordan v. Palmer

| Mass. | Feb 28, 1896

Knowlton, J.

There are several difficulties in the way of the maintenance of the plaintiffs’ suit. In the first place the records of the insolvency court show no irregularity in the proceedings, and the plaintiffs’ having made an application in that court for the relief which they seek here, and having been refused, it must be that the judge of insolvency does not desire to amend the record to make it conform to the allegations of fact contained in this petition. It has been decided that, in a suit of this kind, the record as made up or amended by direction of the judge of insolvency is conclusive evidence of the doings of the court, and that paroi evidence is inadmissible to contradict it. Winchester v. Thayer, 129 Mass. 129" court="Mass." date_filed="1880-07-02" href="https://app.midpage.ai/document/winchester-v-thayer-6419987?utm_source=webapp" opinion_id="6419987">129 Mass. 129.

But if it were shown that everything was done precisely as alleged in the plaintiffs’ petition, the warrant would not necessarily be invalid. The debtor filed a voluntary petition in insolvency, and the court thereby acquired jurisdiction to issue a general warrant. Upon the allegations of the petition alone, if they appeared to be true, it would have been the duty of the judge to issue a warrant at once, if no cause had been shown to the contrary. When the proposition for composition was filed, the judge might properly stay or suspend the issuing of a warrant, or he might issue it immediately, if he thought that justice and the interests of the creditors required the issue of it. Pub. Sts. c. 157, §§ 4,17. St. 1884, c. 236, § 3. The language, “ may stay or suspend any process or proceeding which would otherwise be required bylaw, and may make such orders relating thereto or to the custody of the debtor’s estate as justice and the interests of the creditors may require,” applies to the warrant ordinarily issued in voluntary proceedings, and an order relating thereto may be an order that it be issued at once, as well as any other order.

The petition alleges that certain creditors “filed a petition, evidently under Public Statutes, chapter 157, section 113.” This section authorizes the issue of a warrant for the preservation of the property and the protection of the creditors before the adjudication in involuntary proceedings, and it is not applicable to voluntary proceedings. The indorsement on the petition, “ Let warrant issue to messenger to take charge of property as prayed for,” was not a formal decree, but a memorandum and direction for the information of the register and the court in further proceedings. The application of the creditors brought to the attention of the judge the question whether a warrant ought to be issued in the interest of the creditors for the preservation of the property pending proceedings for a composition, and it was entirely proper for him, in the exercise of the jurisdiction conferred by the filing of the debtor’s original petition, to issue a general warrant, as if no proposition for composition had been filed. This was done, and the application of creditors and the indorsement upon their petition did not affect the validity of the warrant. Pub. Sts. c. 157, §§ 4, 17.

The plaintiffs contend that the appointment of the assignee was invalid, because it was not made at the first meeting of creditors, or at any adjournment thereof. But this contention is founded upon a misconstruction of the statute relating to compositions in insolvency. The right to suspend any process or proceeding usual in insolvency cases involves the right to revive or institute it, and it has already been held that an assignee may be appointed at any time when in the opinion of the judge the interests of justice require such an appointment. Thomson v. Poor, 163 Mass. 26" court="Mass." date_filed="1895-01-08" href="https://app.midpage.ai/document/thomson-v-poor-6425155?utm_source=webapp" opinion_id="6425155">163 Mass. 26. The pendency of a proposition for composition having caused the court to go on with the proceedings without electing an assignee at the first meeting, there was jurisdiction to appoint one at a subsequent meeting. Pub. Sts. c. 157, §§ 40, 41. St. 1884, c. 236, § 3.

These considerations dispose of the case, and we need not consider whether it would be necessary to sustain a demurrer on the ground of loches, if the other grounds were insufficient. See Claflin v. Lowe, 157 Mass. 252" court="Mass." date_filed="1892-10-20" href="https://app.midpage.ai/document/claflin-v-lowe-6424319?utm_source=webapp" opinion_id="6424319">157 Mass. 252. Bill dismissed.