Hosmer v. Hoitt

36 N.E. 835, 161 Mass. 173, 1894 Mass. LEXIS 154

• Court: Massachusetts Supreme Judicial Court
• Decided: March 28, 1894
• Status: Published

Opinion

Barker, J.

There has been no actual entry of judgment, either on the docket or in the extended records of the court. If the case went to judgment, it did so merely by force of the general order, “that judgment be entered on the first Monday of every month, and on the next day thereafter whenever said Monday is a legal holiday, in all actions . . . which are ripe for judgment, unless the party entitled thereto otherwise requests in writing.” But the case was not “ripe for judgment,” and so not within the terms of the order. The defendant was defaulted when the case was reached for trial; but the default was entered as of course, and without passing upon the defendant’s motion for a continuance, then on the files of the court, and based upon the suggestion of his insolvency, also on file in the ordinary form, with a certificate of the Insolvency Court that proceedings were pending in that court.

It is still the settled practice, upon the suggestion of the insolvency of a defendant, to give him a proper opportunity to procure and plead his discharge in insolvency, (Barker v. Haskell, 9 Cush. 218, 222,) and a cause in which a suggestion of insolvency has been duly filed with a motion for continuance, and in which a default has been entered for the defendant’s nonappearance when the cause is reached for trial, is not ripe for judgment either under the general order, or under Rule 27 of the Superior Court, if the motion for a continuance has not in fact been considered and passed upon by the court.

Exceptions overruled.