Woogmaster v. Cutler

Rugg, C.J. This is an appeal from an order of the Superior Court. The defendant pleaded his discharge in bankruptcy granted on his voluntary petition filed more than two years later than the rendition of the verdict in favor of the plaintiff. The plaintiff then filed a motion setting forth that attachment was made of the goods and estate, effects and credits of the defendant when the action was begun, and that the defendant had given two bonds more than three years prior to the filing of the petition in bankruptcy, to dissolve the attachment pursuant to the laws of the Commonwealth, which were duly approved as to sureties, and that through mistake the bonds were not filed as required by law, and praying to be allowed to file the bonds as of October 17, 1919. Upon that motion it was ordered that the motion to file the bonds be allowed but without prejudice to the right of any surety to object that he is not to be prejudiced thereby. It was further ordered that judgment be entered for the plaintiff on the verdict under G. L. c. 235, § 25, and of every other power the court thereto enabling, but perpetually staying execution against the defendant Cutler upon any judgment other than under said § 25. The defendant appealed from these orders. Such appeal brings before us only matters “decisive of the case founded upon matter of law apparent on the record.” Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. The only question argued is whether the court had power to permit the bonds to dissolve the attachments to be filed nunc pro tune. [378] It was assumed at the argument that the bonds were given under R. L. c. 167, §§ 116, 117 and 119, in force at the time, now G. L. c. 223, §§ 120, 121, 123. This is set forth in substance in the motion for filing the bonds. It was required by the last of these sections that the bond "shall be filed by the defendant with the clerk of the court to which the writ is returnable, or in which the action is pending, within ten days after its approval, and the attachment shall not be dissolved until the bond shall have been so filed.” Every presumption of fact must be made in favor of the action of the court below, because there is no evidence in the record. If the entry of the orders can be justified on any state of facts capable of being shown in reason, it must be assumed that such findings were made upon competent evidence. The bonds, not having been filed with the clerk of the court, presumably operated at least as common law bonds. Fogel v. Dussault, 141 Mass. 154. No special judgment, such as here was entered under G. L. c. 235, § 25, could have been entered upon a common law bond. Barry v. New York Holding & Construction Co. 226 Mass. 14. The statutory provisions as to the filing of the bond are for the benefit of the plaintiff except so far as the defendant is thereby afforded a means of dissolving the attachment. The motion avers that, although duly approved as to the sureties, the bonds through mistake were not filed pursuant to the statute. The motion does not disclose who made this mistake. It may have been that of the plaintiff, the defendant, the clerk of the court, or of any two or all of them. The record discloses no error with respect to the order for the nunc pro tune filing of the bonds. The mistake resulting in the failure to file them within the statutory period, may have been found upon conceivable facts to bring it within the principles of Perkins v. Perkins, 225 Mass. 392, where the subject of nunc pro tune orders is discussed at large. Since the order that the bonds be filed as of October 17, 1919, cannot be pronounced erroneous, the case stands on the footing that they were so filed. The special judgment was rightly entered. G. L. c. 235, [379] § 25. Rosenthal v. Nove, 175 Mass. 559. Barry v. New York Holding & Construction Co. 229 Mass. 308. Guaranty Security Corp. v. Oppenheimer, 243 Mass. 324. Order for special judgment affirmed.