Connors

149 N.E. 669, 254 Mass. 103, 1925 Mass. LEXIS 1336

• Court: Massachusetts Supreme Judicial Court
• Decided: November 25, 1925
• Status: Published

Opinion

Braley, J.

The petitioner, having been taken on execution which issued upon a judgment recovered against him, duly appeared, and submitted himself for examination before the justice of the District Court of Newton, held for civil business. G. L. c. 224, §§ 6-18. During the examination, as the court certifies, it was disclosed that the petitioner, after service of notice as required by § 8, had made an assignment for the benefit of creditors of certain of his property which was not exempt from being taken on execution, and with the intent to prevent it from being transferred to the judgment creditor or applied to the satisfaction of the execution. The court thereupon committed him for contempt "until he be discharged, by said court or otherwise according to law,” and he brings this petition for relief from imprisonment by habeas corpus. G. L. c. 248, § 1.

G. L. c. 224, § 11, provides, “If at such examination it appears that after service of the notice, and pending proceedings thereon, the debtor has conveyed, assigned or transferred property or money not exempt from being taken on execution with intent to prevent it from being transferred to the creditor or applied by said proceedings to the satisfaction of the execution, and the court so certifies, the debtor may be committed as for contempt. This section shall not apply to payment of a debt for necessaries, or payment of an execution on which the debtor has been previously cited to appear under this chapter, or payment of a reasonable counsel fee relating to the examination.”

It is contended that it was the intention of the Legislature that separate proceedings should be instituted, and notice served upon the debtor to determine whether he is in contempt, and that the court exceeded its jurisdiction. It is also urged that there was a denial of due process of law, and that § 11 is an attempt by the Legislature to interfere with the judicial department in violation of the constitution of the Commonwealth. But under G. L. c. 224, the court had general jurisdiction of the parties, and of the proceedings, and § 11 in so far as it authorizes commitment for contempt is constitutional. Kerrigan’s Case, 158 Mass. 220. If the court proceeded erroneously or irregularly, the remedy is by writ of error, and not by habeas corpus. Herrick v. Smith, 1 Gray, 1, 49. Fleming v. Clark, 12 Allen, 191, 194. Sellers’ Case, 186 Mass. 301. Flito’s Case, 210 Mass. 33, 35. Craig v. Hecht, 263 U. S. 255. G. L. c. 211, § 3.

Order denying petition affirmed.