Buckley v. John

• Decision Date: 29 October 1943
• Citation: 314 Mass. 719,51 N.E.2d 317
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WILLIAM BUCKLEY v. PANDELI JOHN & others.

314 Mass. 719

51 N.E.2d 317

WILLIAM BUCKLEY v. PANDELI JOHN & others.

Supreme Judicial Court of Massachusetts, Worcester.

October 29, 1943

September 27, 1943.

Present: FIELD, C.

J., DONAHUE, QUA & DOLAN, JJ.

Jurisdiction, Over the person, Nonresident defendant, By consent or waiver. Equity Pleading and Practice, Parties; Appearance; Demurrer Bill; Master: recommittal, report of evidence. Fraudulent Conveyance. Equity Jurisdiction, To reach and apply Fraudulent conveyance.

A defendant in a suit in equity to enforce a claim for services rendered, who had not been served with process in this Commonwealth voluntarily submitted himself to the jurisdiction of the court where, after he had filed a special appearance and pleadings contending want of jurisdiction, which were overruled, he filed a document entitled "plea in bar" in which, while he asserted that he did not waive his "special appearance to the jurisdiction," he nevertheless stated that he was

"willing that the court establish what . . . [was] a reasonable sum to award the plaintiff, if anything."

A demurrer to a bill in equity as a whole was properly overruled where the bill, although it contained immaterial matter and averments of untenable grounds of relief, did set forth one valid cause of action with sufficient clarity and detail.

A motion for recommittal of a report to a master in a suit in equity for a statement of a summary of evidence on certain issues properly was denied as a matter of law where objections to the master's report did not raise questions of law depending upon evidence not reported except questions as to whether there was evidence sufficient in law to support certain findings, as to which it did not appear that there was compliance with the provisions of Rule 90 of the Superior Court (1932) respecting the selection or approval by the master of a stenographer to take the evidence and the furnishing to the master of a transcript of the evidence.

An attorney at law, who had a claim against a client for services rendered and expenses incurred in the prosecution to judgment of litigation against the client's brother, where it appeared that, while the attorney was in possession of the execution issued upon the judgment, the brother, scheming with the client to deprive the attorney of any rights he might have by reason of the execution and on a levy then being made, and to prevent his receiving satisfaction of his claim, paid to the client part of the judgment and the client released all his claims against the brother and all attachments and the levy on the brother's real estate, was entitled to maintain a suit in equity against the client and the brother to have set aside the client's release as a fraudulent conveyance under G. L. (Ter. Ed.) c. 109A and to have the judgment applied in satisfaction of the plaintiff's claim by requiring the brother to pay the judgment to the plaintiff to the extent of that claim; and the plaintiff, having become a creditor of the brother by reason of the statute, also was entitled to have set aside as fraudulent conveyances mortgages by the brother of his real estate given to other defendants without consideration and with intent to defraud the brother's creditors.

BILL IN EQUITY, filed in the Superior Court on February 25, 1941, for which a substitute bill afterwards was filed by leave.

The bill was taken pro confesso as to the defendants Vangel. The case was heard in the Superior Court, upon the various matters described in the opinion, by Leary, J., Hammond, J., and Giles, J., respectively.

The final decree adjudged that the reasonable value of compensation for services and expenses of the plaintiff as attorney for the defendant Pandeli John was $2,120.89; that the defendants John owed the plaintiff that sum and interest; and that the Vangel mortgages "be and the same are hereby discharged." Demetri John was enjoined from conveying or encumbering certain real estate until the plaintiff's claim was satisfied. Paragraphs 6, 7, 8, and 9 of the decree, referred to in the opinion, read as follows: "6. That a lien upon the execution, which issued in the action Pandeli John vs. Demetri John, as provided in G. L. (Ter. Ed.) c. 221, Section 50, be and the same is hereby established in favor of the plaintiff. 7. That the lien shall be null and void upon and after the payment to the plaintiff by or at the direction of Pandeli John or Demetri John of the aforesaid sum of $2,120.89, together with interest and costs . . . . 8. That satisfaction of the lien shall, to the amount of such satisfaction, be credited against the aforesaid sum of $2,120.89, with interest and costs as aforesaid, owed to the plaintiff by the defendants Pandeli John and Demetri John. 9. That the payment to the plaintiff of the sum of $2,120.89, together with interest and costs as aforesaid, or any portion thereof, by or at the direction of either Pandeli John or Demetri John, or satisfaction of the obligation to pay said sum obtained against the property of either, shall, to the extent of such payment or satisfaction, discharge the obligation of the other."

F. P. McKeon, for the defendants.

S. B. Milton, (R.

C. Milton with him,) for the plaintiff.

QUA, J. The plaintiff is an attorney at law. The defendant Pandeli John was formerly a client of the plaintiff for whom the plaintiff successfully conducted an action at law in which he obtained a judgment against the defendant Demetri John in the sum of $5,872.24. John v. John, 307 Mass. 514. The remaining defendants, John Vangel and Zoitsa Vangel, are the joint holders of two mortgages on real estate of Demetri John alleged in the plaintiff's substitute bill to have been given without consideration for the purpose of defrauding Demetri John's creditors, including the plaintiff. The object of the bill is to collect the sum alleged to be due from the defendant Pandeli John to the plaintiff for his services and disbursements in the action of John v. John and to reach and apply in payment thereof the judgment recovered through the plaintiff's efforts against the defendant Demetri John and the execution thereon, which the plaintiff holds in his possession.

The first question is whether Pandeli John has actually become a defendant in the suit. He is described in the bill as of Thompson Connecticut, and, so far as appears, has not been served with process in this Commonwealth. He appeared specially and filed an anomalous "Motion to Dismiss," which was "denied," and an appeal was taken. He then filed a plea to the jurisdiction, which was also "denied" for reasons not stated, and no appeal was taken. See Stone Leather Co. v. Henry Boston & Sons, Ltd. 234 Mass. 477, 478. Thereafter, still attempting to insist upon his motion and his plea, he filed an answer to the merits in which he included a counterclaim. We are not inclined to regard the counterclaim as a general submission to the jurisdiction for the reason that he was probably required to file it by Rule 32 of the Superior Court (1932) or run the risk of losing rights. But later on, after the plaintiff had been allowed to file a substitute bill, the defendant Pandeli John filed a so called "Plea in Bar" wherein, although still asserting that he does not waive his "special appearance to the jurisdiction," he says that he is willing and able to pay the plaintiff a reasonable sum for services rendered, "wherefore, he is willing that the court establish what is a reasonable sum to award the plaintiff, if anything." This so called "plea" states no defence to the suit. It is not a recognized form of pleading. No requirement of practice compelled him to file it in order to proceed with the defence of the suit in obedience to the decisions of the court overruling his motion and his original plea. It must be deemed a purely voluntary submission on his part to the judgment of the court of one of the principal issues in the suit. It is inconsistent with continued reliance upon his special appearance and constitutes a general appearance. In Gahm v. Wallace, 206 Mass. 39 , at pages 44 and 45, this court, speaking through Chief Justice Knowlton, said, "It is a familiar rule that, if one appears generally in a case, or asks the court to do anything which involves the exercise of jurisdiction over the parties, he waives all questions in regard to service and submits himself to the jurisdiction of the court." Britton v. Goodman, 235 Mass. 471 , 475. Karrick v. Trask, 238 Mass. 476, 478-479. Rollins v. Bay View Auto Parts Co. 239 Mass. 414 , 423. Hull v. Adams, 286 Mass. 329 , 332-333. Lapresti v. Burton, 295 Mass. 6 . Tobin v. Downey, 310 Mass. 721 , 723-724. Merchants Heat & Light Co. v. J. B. Clow & Sons, 204 U.S. 286. American Mills Co. v. American Surety Co. of New York, 260 U.S. 360, 366.

The plaintiff's substitute bill, after narrating his services in the action of John v. John, and after stating that the execution in that action was worth approximately $6,000, and after describing the steps that the plaintiff had taken to commence the levy of it upon the real estate of Demetri John, alleges in substance, among other things, that the defendants Pandeli John and Demetri John, who are brothers, conspired together to destroy the plaintiff's right to satisfy his claim for services, alleged to amount to about $2,000, out of the execution and to hinder, delay, and defraud the plaintiff as a creditor of Pandeli John, and that in pursuance of such conspiracy Demetri, without the plaintiff's knowledge, paid directly to Pandeli the sum of $4,000, and Pandeli released all claims against Demetri and discharged the attachment on Demetri's real estate and "the levy on the execution." There are further allegations that the plaintiff had "an equitable right" and...