Sweetser v. Eaton , 96 Mass. 157 ( 1867 )

Gray, J.

If the debtor or his attorney had appeared within the hour which had been appointed by notice to the creditor for the examination, the magistrate might doubtless have kept open, postponed, or adjourned the hearing. Gen. Sts. c. 124, § 16. Mann v. Mirick, 11 Allen, 29. Toll v. Merriam, Ib. 395. Or he might perhaps have done so at the suggestion of the creditor, or upon his own motion. But after the hour had elapsed, without any appearance by or in behalf of the debtor, or continuance or adjournment of the hearing, and the creditor had attended during the whole hour and departed, the jurisdiction of the magistrate to act upon this notice was exhausted, and he could no longer exercise any powers as incidental to a jurisdiction which had ceased to exist. Niles v. Hancock, 3 Met. 572 Hobbs v. Fogg, 6 Gray, 251. Russell v. Goodrich, 8 Allen, 150 After such default, the debtor could be discharged, if at all only upon a new notice in due form. The creditor was therefore justified in disregarding the notices of a motion to take off the default and of a further hearing upon the old notice. The taking off the default and resuming jurisdiction of the case were wholly unauthorized, and the subsequent discharge cannot avail the debtor or his sureties.

Judgment for the plaintiff ^*

* See also Phelps v. Davis, 6 Allen, 287.