Carlin v. Easton

155 A. 527, 51 R.I. 421, 1931 R.I. LEXIS 74

• Court: Supreme Court of Rhode Island
• Decided: June 19, 1931
• Status: Published

Opinions

Sweeney, J.

This is a petition for a writ of prohibition to restrain the respondent as Associate Justice of the Dis trict Court of the Sixth Judicial District from hearing the petition of George Tosté that he be admitted to take the poor debtor’s oath.

It appears in the petition that said Tosté is imprisoned in the Providence County Jail on an execution issued against him on a judgment in favor of the petitioner in an action of trespass for assault and battery; that said Tosté was committed to said jail on the 8th day of July, 1930; that on the 17th day of March, 1931, said Tosté. requested the justice of the District Court of the Eighth Judicial District that he be admitted to take the poor debtor’s oath; that after several hearings said justice denied said request on the 16th day of April, 1931. It further appears that said Tosté is still in said jail on said commitment and has requested the respondent to admit him to take said oath in accordance with the provisions of Chapters 377 and 378, G. L. 1923; that the respondent, acting upon said request issued a citation directed to the petitioner as committing creditor of said Tosté to appear at said jail May 29,1931, to show cause, if any he had, why said Tosté should not be admitted to take said oath.

In the request to this respondent said Tosté alleged that since the denial of his former request to take said oath, there has been a change in his circumstances, namely, that on the 21st day of May, 1931, he made a general assignment for the benefit of his creditors.

Petitioner alleges that there has been no change of circumstances in the condition of said Tosté since the taking out of the first citation upon his first petition for permission to take the poor debtor’s oath within the meaning and contemplation of Sec. 11, Ch. 377, G. L., 1923, and claims that the respondent is without authority to act in the matter.

The facts are undisputed. At the hearing before us a common law assignment for the benefit of his creditors made by said Tosté to John M. Bucci, dated and acknowledged May 21,1931, and duly recorded, was introduced in evidence. Petitioner does not question the validity of this assignment. He contends that the assignment does not constitute a change of circumstances in the condition of the debtor within the meaning of said Section 11. This contention cannot be sustained.

This petition is ruled by the case of Matteson v. Choquet, 36 R. I. 271, where the facts were substantially the same as in the present case. The court said: "We are of the opinion that the objections of the petitioner to the form of the citation and the manner in which it was issued by the respondent are without merit and require no discussion here.” The court cited Angell v. Robbins, 4 R. I. 493, and Burdick v. Simmons, 9 R. I. 17, with approval. The court also said that the making of an assignment for the benefit of his creditors by the judgment debtor would constitute such a change of the debtor’s circumstances as would warrant the issuance of the citation, provided said assignment of the judgment debtor appeared, to the satisfaction of the justice issuing the citation, to be a valid assignment in proper form. The court expressly held: "The respondent had full jurisdiction upon ex parte hearing to judge whether a change of circumstances had occurred.”

The assignment by Tosté to Bucci appears to be a valid assignment in proper form and no evidence has been produced by the petitioner tending to prove the contrary. Matteson v. Choquet, supra, cannot be distinguished from the present case and no valid reason has been given by the petitioner why it should be overruled. Under authority of this case respondent was warranted in issuing the citation upon the complaint of Tosté.

The petition for the writ of prohibition is denied and dismissed.