Radovsky v. Sperling

Sheldon, J. This is an action on a poor debtor’s recognizance, and the facts are exactly the same as stated in the report of this case in 187 Mass. 202, except that it now appears that the only charge filed by the judgment creditor in the Second District Court of Bristol was that mentioned in the first clause of R. L. c. 168, § 17, and that the examination of the judgment debtor, which was begun in that court upon his application to take the oath for the relief of poor debtors, was upon this charge only. The single question in the case therefore is whether the judge of that court, upon the default of the judgment debtor for failing to appear at the time to which the hearing had been adjourned, had jurisdiction also to refuse the oath for the relief of poor debtors. We are of opinion that the judge had not such jurisdiction. The default of the debtor was entered in his absence, and apparently for his failure to be present at the expiration of the hour allowed. It could accordingly have been entered only at the expiration of the hour. Hills v. Jones, 122 Mass. 412. Sweetser v. Eaton, 14 Allen, 157. Russell v. Goodrich, 8 Allen, 150. And after the hour had elapsed without any appearance by the debtor or continuance or adjournment of the hearing, the jurisdiction of the judge was exhausted, and he no longer had the power either to grant or to refuse the oath to the judgment debtor. Russell v. Goodrich, ubi supra. Sweetser v. Eaton, ubi supra. Lincoln v. Cook, 124 Mass. 383, 386. A fortiori this would be so when the debtor’s examination was unfinished. The breach of the recognizance is completed for the time being by the default; and any subsequent proceedings are beyond the [509] power of the court. Damon v. Carrol, 163 Mass. 404. Morgan v. Curley, 142 Mass. 107. Fuller v. Meehan, 118 Mass. 135. No doubt the judgment creditor might waive his right to avail himself of this default and to sue for a breach of the recognizance, as was held in Vinal v. Tuttle, 144 Mass. 14, and Mount Washington Glass Works v. Allen, 121 Mass. 283, and cases there cited ; but, apart from the fact that it is difficult to see how, after having waived a default, he could set it up as ground for requiring other final action upon the default, it does not appear that there was any such waiver. Doubtless also the magistrate, if he chooses, can retain jurisdiction, after the hour, upon his own action taken within the hour, as held in Mann v. Mirick, 11 Allen, 29, or upon any question of sentence or motion in arrest of judgment under R. L. c. 168, §§ 52, 55, raised before the default is entered, as in McLeod v. Freeman, 122 Mass. 441. But no question of that kind arises in this case. We are therefore of opinion that this magistrate had no jurisdiction to refuse the oath for the relief of poor debtors to this judgment debtor after his default upon the first charge mentioned in R. L. c. 168, § 17. It follows that the second notice, having been given more than seven days after service of the former one, and there having been no valid refusal of the oath under the first notice, was issued properly under R. L. c. 168, § 35 ; * and the debtor having been discharged thereon, there was no breach of the condition of the recognizance. Exceptions overruled. Footnotes [*] The default in the Second District Court of Bristol was on December 2, 1903. On December 5,1903, Sperling applied to the Third District Court of Bristol to take the oath for the relief of poor debtors, and the oath was administered to him by the judge of that court on December 15, 1903. Sperling’s notice of his application to the Second District Court of Bristol was served upon the plaintiff as judgment creditor on November 27, 1903.