Cullen v. Marzano ( 1928 )

This is an action of debt on bond against both principal and surety on two bonds given in separate actions to a constable, having power to serve civil processes, to release two attachments on the property of the principal. Within four months after said attachments were made the principal was adjudged a bankrupt. This action was commenced in the District Court of the Sixth Judicial District and was certified to this court on an agreed statement of facts for determination.

The condition of each of said bonds was as follows: "Now, therefore, if the final judgment in the action commenced by said writ shall be forthwith paid and satisfied after the rendition thereof (in case said judgment shall be rendered against the said defendant), then this obligation shall be null and void, otherwise shall be and remain in full force and effect."

The plaintiff in each writ of attachment obtained a final judgment against L.J. Marzano, Inc., who was the defendant therein and the principal in each of said bonds. The judgment in one case was for $80 and costs taxed at $10.40 and in the other for $80 without costs. The principal made a composition with his creditors, and the plaintiff in said suits of attachment having filed his claim against the bankrupt estate received from said estate $42.01 on account of his claim as evidenced by the two judgments which he had obtained.

The question presented is whether the surety on a bond, given to release an attachment, with condition to pay any judgment which the plaintiff in that action may obtain, is released from liability on the bond, either by an adjudication within four months after the attachment that the defendant is a bankrupt, or by the act of the plaintiff in the original action in filing his claim against the bankrupt's estate and accepting a dividend.

The question has been recently considered by us and answered in the negative in Goodwin Sigel v. Boston Clothing Co.,47 R.I. 25. See also Andrews v. Jones, 46 R.I. 141; Andrews v.Fain, 46 R.I. 165.

Decision is hereby rendered for the plaintiff for $200 the total of the penal sums of said bonds. The papers in this case with our decision certified thereon are ordered sent back to the District Court of the Sixth Judicial District with direction to enter final judgment for the plaintiff upon said decision and to award the plaintiff an execution against Filomena Marzano for $170.40 and interest thereon from January 27, 1927, and costs of this action, minus $42.01 and interest thereon from March 12, 1927.