Charles E. Gifford v. Catherine Rockett &Amp; Trustee
| Decision Date | 26 October 1875 |
| Citation | 119 Mass. 71 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Charles E. Gifford v. Catherine Rockett & trustee |
Bristol. Trustee process begun in the Police Court of Fall River, where the principal defendant and the trustee were defaulted, and James Featherstone appeared as claimant of the funds in the hands of the trustee, and was adjudged to be entitled to the funds, and the plaintiff appealed. In the Superior Court, Wilkinson, J., ordered tat the trustee be charged on his default in the court below, and found for the claimant in the sum of $ 55.01. No judgment was entered against the defendant. The plaintiff alleged exceptions to this order, which need not be stated.
Exceptions dismissed.
A. N Lincoln, for the plaintiff.
H. K Braley, for the claimant.
An adverse claimant of funds in the hands of a trustee is made a party to the suit, only for the purpose of being heard upon the question whether, and for what amount, the trustee shall be charged; he is entitled to be heard even if the trustee is defaulted; and he cannot, except in the matter of costs, have judgment in his own name against the plaintiff or the defendant or the trustee. Gen. Sts. c. 142, §§ 15, 16, 73. Morrison v. McDermott, 6 Allen 122. Boylen v. Young, 6 Allen 582. Fuller v. Storer, 111 Mass. 281. Stockwell v. Silloway, 113 Mass. 382. Peck v. Stratton, 118 Mass. 406.
If, as was admitted at the argument of these exceptions, the amount to which the claimant was held by the Superior Court to be entitled equalled the whole fund in the hands of the trustee, it may well be doubted whether the provision of the Gen. Sts. c. 142, § 13, that a person, duly summoned as trustee, who, not appearing or answering, is defaulted, shall be adjudged a trustee, could rightfully be applied to the case.
But that fact does not appear upon the record before us, and, however it may be, a ruling in favor of the claimant is no more than an interlocutory order; and, until it has been embodied in a judgment as between the plaintiff and the trustee, discharging the latter so far as the claimant is held to have maintained his claim, exceptions to the ruling cannot be entered in this court, because the record has not been completed and the case finally disposed of in the court below. Safford v. Knight, 117 Mass. 281. National Bank of Clinton v. Taylor, 120 Mass. 124.
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...The liability of the alleged trustees had not been determined on January 29, 1940, and the case was not then ripe for judgment. Gifford v. Rockett, 119 Mass. 71. We that the pendency of this special precept was a matter of substance appearing on the docket, which prevented the case from aut......
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...the creation of statute. He is made a party to the proceeding. Boylen v. Young, 6 Allen, 582;Fuller v. Storer, 111 Mass. 281;Gifford v. Rockett, 119 Mass. 71;Hubbard v. Lamburn, 189 Mass. 296, 75 N. E. 707;Zani v. Phandor Co., 281 Mass. 139, 146, 149, 183 N. E. 500. He has no right to a jud......
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