Sartwell v. North

Devens, J. The decision in the case at bar must be governed by the opinion heretofore delivered in the same case in 144 Mass. 188. The facts, which are there stated fully, are the same, with a single exception to be hereafter noticed; and upon these and those reasonably to be assumed, it was held, as it has been held by the judge who presided at the last trial, that a preference within the meaning of the insolvency law was shown in refer [146] ence to the property seized on execution by the defendants, the value of which is sought to be recovered in this action by the assignees in insolvency of the defendants’ debtors, Fitz and Martin. It was there said, that to facilitate the procuring a -judgment in favor of the present defendants by Fitz and Martin, the insolvent debtors, against whom they had brought suit, was an act of preference on their part, if done with the intention, and if it had the effect, of aiding these creditors in obtaining a preference over other creditors by levying an execution on their property. It was found, as it must be deemed to have been found by the judge of the Superior Court at the last trial, that one of the purposes of the attorney of the present defendants, — who had acted also as attorney for Fitz and Martin, after the suit against them was brought, in endeavoring unsuccessfully to arrange a compromise with their creditors on the payment of twenty-five per cent, —in obtaining another attorney to enter an appearance for them in the suit, was to facilitate proceedings in its further prosecution by thus avoiding the necessity of taking out an order of notice, and ’’making further service under the Pub. Sts. c. 161, § 84, the original service being deemed insufficient, and that this purpose was fairly attributable to Fitz and Martin through the act of the attorney employed on their behalf, and by construction of law was their purpose. At the former hearing it was assumed, although the writ was not before the court, that the service of the writ in the action brought by the defendants against Fitz and Martin was insufficient. The defendants now claim to have proved, as an additional fact, that the service was sufficient, and that the assumption thus made was erroneous. They therefore contend that the entry of an appearance for Fitz and Martin to cure any supposed deficiency therein was superfluous, and in no way facilitated the obtaining of judgment and execution by them. Even if w*e adopt the defendants’ view, that the service of the writ was sufficient, it by nó means follows that their proceedings were not facilitated by the act of their attorney in causing the appearance of the second attorney to be entered for Fitz and Martin under the authority which he had from them. A memorandum had been entered on the docket of [147] the court, that the service was insufficient. It may be that it did not there appear, as it now does by the bill of exceptions, that Fitz and Martin had a “ usual place of business ” in Boston. If they had not, the service was clearly insufficient.. But whether it did appear or not, while the court held the service insufficient, the defendants could not obtain their judgment in this suit and execution thereon. The bill of exceptions recites that the object of the attorney was “ to save the necessity of taking out an order of notice and making further service upon the defendants therein, and that his subsequent action in that suit was with a view of collecting in full the debt of his clients, the defendants in this action, and thereby obtaining an advantage over the other creditors of Fitz and Martin.” The service, whether originally defective or not, was completed to the satisfaction of the court by the entry of the appearance of the other attorney. An obstacle which could not have been surmounted, unless the court had revised its opinion, except after an order-of notice and service thereof, was thus removed by the act of the defendants’ attorney, who acted also by the authority of Fitz and Martin in causing this to be done. The obtaining of judgment was thus directly facilitated. The defendants further contend that the Municipal Court of the city of Boston, in which this action was commenced, had no jurisdiction thereof, and thus that the Superior Court had none. They urge that this is a proceeding to set aside and annul a judgment of that court, which, as they contend, has no power to reverse its own judgment when rendered. This contention results from an entire misconception. The plaintiffs treat the judgment itself rendered in favor of the defendants as valid, and also the levy of the execution issued thereon. They claim it to have been obtained as a preference in fraud of the insolvent law, and as assignees thereunder they seek to recover the proceeds of the sale on execution as property belonging to them in representing the general creditors. Exceptions overruled.