Cudahy Packing Co. v. Palmisciano

Superior Court of Rhode Island

Cudahy Packing Co. v. Palmisciano

2 Super. Ct. (R.I.) 5

CourtSuperior Court of Rhode Island

DecidedOctober 7, 1918

DocketNo. 42267

StatusPublished

This text of 2 Super. Ct. (R.I.) 5 (Cudahy Packing Co. v. Palmisciano) is published on Counsel Stack Legal Research, covering Superior Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cudahy Packing Co. v. Palmisciano, 2 Super. Ct. (R.I.) 5 (R.I. Ct. App. 1918).

Pincite

Opinion

DECISION

TANNER, P. J.

This ease is heard upon demurrer to defendants rejoinder.

Defendant pleaded discharge in bankruptcy on the elaim sued upon. Plaintiff replied that a bond had been given to release the attachment with good and sufficient sureties thereon, which bond was conditioned upon the payment of the final judgment in this ease.

Defendant’s rejoinder shows that the attachment was made within four months of the adjudication in bankruptcy. The question then presented is whether or not this Court ought to allow a special judgment against the defendant for the purpose of suing the sureties upon the attachment bond.

IV e think upon the better reason and the weight of authority that it would not be equitable to permit such a limited judgment for such purpose. If attachment had been made more than four months prior to the adjudication in bankruptcy, such limited judgment would have been quite proper, but the attachment in this case made within four months before bankruptcy would have been dissolved by the bankruptcy. The plaintiff in this case, therefore, has lost nothing by reason of the bond. This may be considered to have taken the place of the attachment, and we do not think it would be equitable in such an [6]*6action to render a special judgment to enable him to pursue the bond.

For plaintiff: Cunningham & O'Connell. For defendant: Frank H. Wildes.

Crook and Horner vs. Gilpin, 112 Md. 1.

Demurrer overruled.

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DECISION

TANNER, P. J.

This ease is heard upon demurrer to defendants rejoinder.

Defendant pleaded discharge in bankruptcy on the elaim sued upon. Plaintiff replied that a bond had been given to release the attachment with good and sufficient sureties thereon, which bond was conditioned upon the payment of the final judgment in this ease.

Defendant’s rejoinder shows that the attachment was made within four months of the adjudication in bankruptcy. The question then presented is whether or not this Court ought to allow a special judgment against the defendant for the purpose of suing the sureties upon the attachment bond.

IV e think upon the better reason and the weight of authority that it would not be equitable to permit such a limited judgment for such purpose. If attachment had been made more than four months prior to the adjudication in bankruptcy, such limited judgment would have been quite proper, but the attachment in this case made within four months before bankruptcy would have been dissolved by the bankruptcy. The plaintiff in this case, therefore, has lost nothing by reason of the bond. This may be considered to have taken the place of the attachment, and we do not think it would be equitable in such an [6]*6action to render a special judgment to enable him to pursue the bond.

For plaintiff: Cunningham & O'Connell. For defendant: Frank H. Wildes.

Crook and Horner vs. Gilpin, 112 Md. 1.

Demurrer overruled.

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Bluebook (online)

2 Super. Ct. (R.I.) 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cudahy-packing-co-v-palmisciano-risuperct-1918.

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