Home SUMNER B. COTZIN & another vs. LOUIS COOPER & others.

5 Mass. App. Ct. 825

May 13, 1977

The court erred in denying the motion of both corporate defendants to recall the executions and to strike their respective names from the portions of the executions which described them as judgment debtors. See Boston v. Santosuosso, 308 Mass. 202 , 206, 208 (1941). Cooper may have been the majority stockholder in General Industries, Inc. (General), but there is nothing in the record that shows (or even suggests) that General was ever indebted to Cooper in any respect. It is true, as the plaintiffs argue, (a) that Paradox Production Corporation (Paradox) admitted in its answer filed on June 26, 1972, that it was then indebted to Cooper on the claims and in the amounts specifically set out in par. 12 of the answer filed by Cooper on the same date and (b) that Paradox was enjoined by the preliminary injunction entered on May 5, 1972, and by pars. 2 and 5 of the so called "Final Decree" entered on June 4, 1974, from making any payment to Cooper on any of those claims. The difficulties are (c) that Cooper was never restrained or enjoined from negotiating or otherwise transferring any of those claims (at least two of which appear to have been subject to Rule 47 of the Superior Court [1974]) and (d) that no finding or other judicial determination was ever made prior to the issuance of the executions on February 12, 1975, to the effect that Cooper still continued to own any of the claims in question. The hiatus arising out of (d) was expressly recognized in pars. 7 and 9 of the decree of June 4, 1974, which spoke in terms of Paradox's paying the plaintiffs "any sums found to be due . . . Cooper . . .." In short, the motion should have been allowed on the ground stated therein that "no judgment or finding of debt has been made as to [either corporate defendant]." Both executions are to be recalled, and the name of Paradox is to be struck therefrom. [Note 1] So ordered.


[Note 1] General has not appealed from the order denying the motion in question.


5 Mass. App. Ct. 825

May 19, 1977

Although the assignment of error which is directed to two sentences in the judge's charge brings nothing before this court for review because the assignment is not based on an exception, Commonwealth v. Miller, 4 Mass. App. Ct. 379 , 382-383 (1976), we have examined the allegedly erroneous

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instructions to determine whether there is a likelihood of "a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556 , 564 (1967). We have concluded that the charge, viewed in its entirety, was not erroneous. The other assignment of error, not having been briefed, is deemed waived.

Judgment affirmed.