Connelly v. Dionne Trucking, Inc

• Decision Date: 23 November 1920
• Citation: 236 Mass. 460,128 N.E. 719
• Parties: CONNELLY v. DIONNE TRUCKING, Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 460

128 N.E. 719

CONNELLY

v.DIONNE TRUCKING, Inc., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 23, 1920.

Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge.

Suit by Eugene P. Connelly against the Dionne Trucking, Inc., and others, and trustees, wherein the Jenney Manufacturing Company claimed attachment made by it of funds in the hands of the trustee was valid against plaintiff on account of misnomer of the corporate defendant in the bill. Final decree was entered for plaintiff, and claimant appeals. Decree affirmed.

Robert M. Bowen, of Boston, for appellant.

J. Joseph Carraher, of Boston, for appellee.

CROSBY, J.

This is a bill in equity by which the plaintiff seeks to recover a debt due him from the Hall Motor Truck Company of New England, of Boston, or from the Dionne Trucking, Inc. The bill alleges that the defendants have no property which may be attached in an action at law, the defendants have admitted the allegations of the bill and the alleged trustee has answered. As no question of jurisdiction is raised, we proceed to consider the only issue of law presented by the record.

The bill was filed July 22, 1919, in which the Dionne Trucking, Inc., is described as the ‘Dionne Trucking Co., Inc.’ A subpoena was served on the trustee Earnshaw on July 28, 1919, and on the defendants on August 6, 1919; on August 7, 1919, Earnshaw was summoned as trustee in an action at law brought by the Jenney Manufacturing Company, the claimant in this suit against the ‘Dionne Trucking, Inc.,’ which is the corporate name of the defendant.

Without reciting all the proceedings in the case, the record shows that a hearing was had in the superior court at which the Jenney Manufacturing Company appeared and claimed that the attachment made by it of the funds in the hands of the trustee was valid against the plaintiff in this suit, because of the misnomer of the Dionne Trucking, Inc., in the bill. The judge filed a finding of facts, and ordered that a decree be entered directing that the plaintiff be paid $771.25, and taxable costs amounting to $47.84, out of the funds originally in the hands of the trustee, which were afterwards paid to the clerk of the superior court, the balance to be held to await the final determination of the action at law brought by the claimant. After the findings were made, the court allowed a motion to amend the bill by striking out the name ‘Dionne Trucking Co., Inc.,’ wherever it appeared and substituting therefor ‘Dionne Trucking, Inc.’ A final decree was entered in accordance with the order and the case is before us on the claimant's appeal.

The only error in the description of the defendant in the bill was in the insertion of ‘Co.’ after the word ‘Trucking.’ The judge found the following and other facts: That there was no mistake on the part of the plaintiff in describing the corporation intended, that the trustee Earnshaw was not misled by the mistake in the name and knew that “Dionne Trucking, Inc.' was the person the plaintiff had in mind as ‘Dionne Trucking Co., Inc.,”; that ‘from first to last there has been no mistake or misunderstanding on the part of any one as to the person intended...