O'Neill v. Small

Wait, J. This case is before us upon two bills of exceptions filed by the plaintiff. The first raises the question of the validity of an order of the Superior Court dated July 7, 1927, which directed payment by the plaintiff within ten days thereafter of the amount due upon a mortgage which was found to be valid. The second challenges an order of the court denying a motion for revocation of the order of July 7, and for rehearing. Material facts are as follows: Upon a writ dated January 12, 1927, returnable to the Municipal Court of the City of Boston on January 29,1927, the plaintiff attached goods in the possession of the defendant which were subject to a mortgage. The attachment was made on January 14,1927, and the mortgagee was summoned as a trustee, pursuant to G. L. c. 223, §§ 79-83. The case was removed to the Superior Court, where it was tried upon pleadings raising the validity of the mortgage and of its attempted foreclosure subsequent to the attachment and service of the trustee writ. Findings of fact and rulings of law were filed. The mortgage was found to be valid. The trustee at the hearing contended that the attachment made January 14 had been abandoned, and that he thereupon took possession and foreclosed. The judge found that there [309] had been no abandonment, and that the alleged foreclosure was invalid. He found that $1,000 and interest from December 23, 1926, was due thereon. He gave all material instructions requested by plaintiff and trustee. On June 3, the trustee filed a motion that the plaintiff be ordered to pay the amount found due by the findings filed April 20; and alleged that the mortgaged property had decreased largely in value and that if returned he would suffer great loss. Hearing was had on this motion, and on July 7, the court filed an order declaring the mortgage valid, finding that on July 7, 1927, there was due upon it $1,031.83 and directing that the plaintiff pay said sum with costs to be taxed by the clerk to the trustee or his assigns within ten days. In the meantime, the plaintiff, on July 2, filed a suggestion that Small, the defendant, had been adjudicated bankrupt on June 2, 1927. While the attachment is in force, the mortgagee cannot proceed under his mortgage against the property, Martin v. Bayley, 1 Allen, 381, Shapiro v. Park Trust Co. 253 Mass. 383, 388; but his right to his security, at some time, is not impaired, unless the attaching creditor attacks successfully the validity of the mortgage. It is the duty of the creditor to pursue the proceeding which he has begun by his attachment until the. validity of the mortgage is determined; or to abandon his attachment. Martin v. Bayley, supra, at page 384. Hayward v. George, 13 Allen, 66. If the trustee appears and either the creditor discontinues against him or he is discharged by the court, the attachment is dissolved. Goulding v. Hair, 133 Mass. 78, 81. Although the order of the court under which the validity of the mortgage was tried out was apparently based upon a motion filed by the trustee for his discharge, all parties have dealt with it as if made upon a motion by the plaintiff for trial without jury accompanying a denial that the mortgage was valid. G. L. c. 223, § 81. It is too late now to object to matters of form. The denial was made, the issue was tried and decided. No action was possible, however, until the court had fixed the amount due and ordered payment by the attaching creditor. G. L. c. 223, § 80. Shapiro v. Park Trust Co. supra, at page 387. Banca Italiana Di Sconto v. Columbia Counter [310] Co. 255 Mass. 255. We see nothing in the bankruptcy of the defendant, or in the other matters brought to the attention of the court, which affects its duty to make the determination and order prescribed by the statute. What may happen afterward is not of moment to the propriety of the order. The attachment, if not abandoned, remains in force until the failure of the creditor to pay the amount directed within the time fixed. The order does not oblige the creditor to make payment. He is left, under the statute, knowing what and when he must pay if he wishes to maintain his attachment, with the choice of paying in accord with the order or of losing his attachment. McDonald v. Faulkner, 154 Mass. 34. If the creditor allows the attachment to be dissolved, the dissolution is the act of the law. The remedies of the trustee mortgagee, if he has suffered loss, must be obtained in other proceedings. This order of the court was proper. The exceptions thereto must be overruled. The motion for revocation and rehearing was, in substance, a motion for new trial based upon newly discovered evidence. Such a motion is addressed to the sound discretion of the trial judge. Unless some abuse of discretion is disclosed his decision must stand. Commonwealth v. Sacco, 259 Mass. 128, 136. Davis v. Boston Elevated Railway, 235 Mass. 482. Nothing in the bill of exceptions discloses any abuse of discretion. The affidavits tending to show perjured testimony at the hearing do not require the judge to grant another trial on the issue of the validity of the mortgage. His original findings show that the decision was made after considering contradictory evidence. He may well have thought that the evidence of falsity furnished by the affidavits would not affect the result formerly reached. The rulings requested as of law are, in' substance, rulings upon facts. We find no error in refusing them. Both bills of exceptions overruled.