Page v. Cole, 123 Mass. 93

Page v. Cole

123 Mass. 93 | Mass. | 1877

Morton, J.

The bankrupt act provides that “no creditor whose debt is provable shall be allowed to prosecute to- final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor’s discharge shall have been-determined; and any such "suit or proceeding shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge* provided there is no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge, and provided; also,, that if the amount due the creditor is in dispute, the suit, by/ leave of the court in bankruptcy, may proceed to judgment for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy, but execution shall be stayed.” U. S. Rev. Sts. § 5106

*96The object of this provision is not only to protect the bankrupt, to prevent his being harassed by suits while the question of his discharge is pending, and to enable him to plead his discharge in bar of the debt, but also to enable the assignee to come in and defend the suit. Ray v. Wight, 119 Mass. 426, and cases cited. National Bank of Clinton v. Taylor, 120 Mass. 124.

In the case at bar, before judgment was entered, the defendant was duly adjudged a bankrupt, and on the same day filed in the suit a suggestion of his bankruptcy and made application to the court to have the case stayed to await the determination of the question of his discharge. After this application, the Superior Court had no power to proceed further in the suit. ■ It had no more power to enter a judgment as of a former day, the effect of which would be to hold the sureties on the bond to dissolve the attachment, to render the bankrupt liable to his sureties for such sum as they might pay notwithstanding his discharge, and thus practically to prevent his discharge from operating upon this debt, than it had to enter a judgment as of the day on which the order was made. The court cannot take into consideration the fact that the defendant obtained delay by a frivolous motion for a new trial. The provision of the bankrupt act is peremptory that upon the application of the bankrupt the suit shall be stayed to await the determination of the court of bankruptcy on the question of his discharge.

The order of the Superior Court that judgment be entered as of a former day was therefore erroneous.

Exceptions sustained.