Britton v. Goodman

• Decision Date: 05 April 1920
• Citation: 126 N.E. 767,235 Mass. 471
• Parties: BRITTON v. GOODMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 471

126 N.E. 767

BRITTON

v.GOODMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1920.

Appeal from Municipal Court of Boston, Appellate Division.

Action of contract by L. B. Britton against J. A. Goodman and others, who filed plea in abatement, which was overruled, and the case reported to the appellate division of the municipal court of the city of Boston, which dismissed the action. From its order, plaintiff appeals. Decision of the appellate division reversed, and that of the single judge of the municipal court ordered to stand.

Harvey P. L. Partridge and Albert F. Flint, both of Boston, for appellant.

Joseph B. Jacobs and Jacobs & Jacobs, all of Boston, for appellees.

BRALEY, J.

The record recites the following facts, concerning which there is no dispute: The plaintiff, April 14, 1919, sued out of the municipal court of the city of Boston a writ of summons and attachment by trustee process in an action of contract wherein he is described as of ‘said Boston,’ and the defendants Jacob A. Goodman and Lazure L. Goodman are named as ‘copartners doing business as the Goodman Hosiery Co., as the Keystone Knitting Mills and as the Dixie Hosiery Mills, and having a usual place of business in Burlington in the state of northCarolina,’ while the trustee the Commercial Trading Company, is stated to be ‘a corporation duly established by law and having a usual place of business in Boston aforesaid in the county of Suffolk.’ The funds which were alleged to be the property of the principal defendants having been duly attached, they dissolved the attachment by giving in due form a bond signed by them as principals and an indemnity company as surety, which having set forth among other recitals that whereas the plaintiff has caused the goods, effects and credits ‘of said J. A. Goodman and L. L. Goodman in the hands or possession of the Commercial Trading Company to the value of fifteen hundred dollars' to be attached on mesne process in a civil action returnable April 26, 1919, and whereas said defendants wish to dissolve said attachment according to law, stipulated that if within thirty days after the final judgment in said action the defendants should pay the amount, if any recovered thereon the ‘obligation shall be null and void, otherwise it shall be and remain in full force and virtue.’ The surety and bond having been approved by plaintiff's counsel, and the writ having been returned into court, Jacob A. Goodman and Lazure L. Goodman, the obligors, appearing specially filed a plea in abatement which averred that one Abraham Goodman was a member of the firm who should be joined as a party defendant, and that ‘the action could not be maintained because the court had no jurisdiction over them,’ and ‘there is no property in the commonwealth of Massachusetts belonging to the defendants Jacob A. Goodman and Lazure L. Goodman individually or as copartners which can be attached by the plaintiff, or can come at to be attached, but that any property that has been attached by the plaintiff belongs to the aforesaid Jacob A. Goodman, Lazure L. Goodman and Abraham Goodman.’ The plaintiff accordingly moved to amend by joining Abraham Goodman, whose domicile is alleged to be the same as that of the other defendants, and the motion was allowed. The case then came on for trial, and the trial judge was asked by the defendants to rule that upon all the evidence the plaintiff's action should be dismissed; that there is no property of the defendants within the jurisdiction of the court which could be come at to be attached; that the court has no jurisdiction over the defendants, and that upon all the evidence the writ in the case at bar should be abated. The judge overruled the plea in abatement, and declined to give the rulings, and at the defendants' request reported his refusal to the Appellate Division, which decided that the action should be dismissed, and the plaintiff appealed to this court.

We are, however, unable to discover any error of law in the proceedings before the trial judge. The attachment appears to have been effectual, and the plaintiff, although no personal service had been made on the defendants, could have recovered a valid judgment to secure the application of the property so attached to the satisfaction of the judgment. R. L. c. 170, §§ 1, 6, 7; Lowrie v. Castle, 198 Mass. 82, 89, 83 N. E. 1118;Gahm v. Wallace, 206 Mass. 39, 42, 91 N. E. 1002. But by R. L. c. 167, § 116, as amended by St. 1905, c. 110, St. 1906, c. 187, a defendant whose property has been attached on mesne process in a civil action may at any time before final judgment dissolve the attachment by giving bond with sufficient sureties ‘who shall be approved by the plaintiff or by his attorney in writing, by a master in chancery or by a justice of a court of record if the attachment is made within the jurisdiction of such justice.’ The bond in the case at bar complies with the statutory requirements, and we assume that it must have been filed with the clerk of the court as required by section 119, and the usual certificate issued, for the record states that the defendants dissolved the attachment by giving an attachment bond. Wall v. Kelly, 209 Mass. 370, 95 N. E. 858. The attachment having been dissolved by operation of law, the plaintiff is remediless in our courts unless a personal judgment can be recovered.

[4] It is settled by Briggs v. McDonald, 166 Mass. 37, 43 N. E. 1003, and O. Sheldon Co. v. Cooke, 177 Mass. 441, 59 N. E. 77, that having given a bond, an instrument under seal, to release their property from attachment, the defendants are estopped to deny that an attachment had been made. The case of Merriman v. Currier, 191 Mass. 133, 77 N. E. 708,...