Cambridge Savings Bank v. Clerk of Courts For County of Hampden

• Decision Date: 05 January 1923
• Citation: 243 Mass. 424
• Parties: CAMBRIDGE SAVINGS BANK v. CLERK OF COURTS FOR COUNTY OF HAMPDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

243 Mass. 424

CAMBRIDGE SAVINGS BANK v. CLERK OF COURTS FOR COUNTY OF HAMPDEN.

Supreme Judicial Court of Massachusetts, Middlesex.

January 5, 1923

November 23, 24 1922.

Present: DE COURCY CROSBY, PIERCE, & JENNEY, JJ.

Clerk of Courts. Mandamus. Receiver. Equity Pleading and Practice, Parties. Equity Jurisdiction, Receivership proceedings. Railroad.

Although a creditor of a railroad corporation, who has made an attachment of its real estate in an action which is pending in court, is not estopped to repudiate the action of another creditor who thereafter brought against the corporation in the Superior Court a suit in equity seeking the appointment of a receiver in which the second creditor alleged that the suit was brought in his own behalf and "in behalf of all other creditors of the" corporation and in which, with the consent of the corporation but without any other than the plaintiff therein being given notice or an opportunity to be heard and without their being heard, an interlocutory decree appointing a receiver was entered; and although such attaching creditor was a party interested in such receivership suit and had the right to intervene and oppose the appointment of the receiver when made or thereafter on petition to vacate the decree upon the ground that on the facts as disclosed in the record the court was without jurisdiction to appoint the receiver; and although a decree denying such a petition to vacate was a final decree from which the petitioning creditor had a right to appeal to this court, nevertheless, if the clerk of courts refused to receive and file such an appeal, the appealing creditor had a speedy, plain and adequate remedy at law through an application to the court for an order directing the clerk its ministerial officer, to act; and a petition for a writ of mandamus directing the clerk to take such action therefore will not lie.

PETITION, filed in the Supreme Judicial Court on October 31, 1921, and afterwards amended by a substitute petition allowed on May 23, 1922, for a writ of mandamus directing the defendant to accept an entry fee for, and to enter, an appeal by the petitioner from an interlocutory decree entered in the Superior Court on March 17, 1921, by order of Sisk, J appointing a receiver of Hampden Railroad Corporation in a suit brought in Hampden

County against that railroad corporation by Hampden National Bank, which alleged that it brought the suit "in its own behalf and in behalf of all other creditors of the Hampden Railroad Corporation."

The case was heard by Carroll, J., upon the substituted petition and an answer. Material facts are described in the opinion. By order of the single justice, the petition was "dismissed as a matter of law," and the case was reported to the full court for determination.

G. K. Richardson, for the petitioner. H. S. Davis, for the respondent.

PIERCE, J. This is a petition for a writ of mandamus to order and direct the respondent, in his capacity as clerk of courts for the county of Hampden, to receive an entry fee and to enter on the docket of the Supreme Judicial Court the appeal of the petitioner from an order of the Superior Court for the county of Hampden denying the petition of the Cambridge Savings Bank that a decree of the said Superior Court appointing a receiver of the Hampden Railroad Corporation be vacated. The petition was heard by a single justice of this court upon the substitute petition and answer thereto. He ordered the petition "dismissed as a matter of law," and reported the case for determination by the full court.

The undisputed and admitted facts, shown by the petition and answer, succinctly stated are that on February 21, 1921, the Cambridge Savings Bank, as a creditor, purchased a writ in the Superior Court for the county of Middlesex against the Hampden Railroad Corporation and under that writ caused the property of the defendant corporation to be attached in the sum of $30,000. It sufficiently appears, although not in terms stated in the report, that the writ was entered and that the action is now pending in the Middlesex Superior Court. It further appears that divers other corporations had brought suit to enforce collection of...