Darling Auto. Co. v. Hall

• Decision Date: 08 March 1938
• Citation: 197 A. 558
• Parties: DARLING AUTOMOBILE CO. v. HALL et al. JAMES BAILEY CO. v. SAME.
• Court: Maine Supreme Court

197 A. 558

DARLING AUTOMOBILE CO.

v. HALL et al.

JAMES BAILEY CO.

v. SAME.

Supreme Judicial Court of Maine.

March 8, 1938.

Appeal from Supreme Judicial Court, Aroostook County, in Equity.

Creditors' bills in equity by the Darling Automobile Company and the James Bailey Company to reach and apply to complainants' claims the interest which Fred E. Hall has in property in possession of the L. S. Bean Company, and incidentally to discover the status of Georgia Hall's claims to the property. From decrees dismissing the bills, complainants appeal.

Appeals sustained, and cases remanded for entry of decrees dismissing the bills without prejudice.

Argued before DUNN, C. J., and STURGIS, THAXTER, HUDSON, and MANSER, JJ.

Pendleton & Rogers, of Caribou, and Seth May, of Auburn, for plaintiffs. Weick & Blanchard, of Presque Isle, for defendant L. S. Bean Co. George B. Barnes, of Houlton, for defendants Fred E. Hall and Georgia Hall.

STURGIS, Justice.

In these bills in equity, the complainants primarily seek to reach and apply to the payment of their claims the right, title, and interest which the defendant Fred E. Hall has in certain moneys, notes, and automobiles now in the possession of the defendant L. S. Bean Company, and incidentally discover the status of any claims the defendant Georgia Hall makes to this and other property. All answers are under oath, and to those made severally by Fred E. Hall and Georgia Hall replications are filed. At the hearing before the sitting justice, the suits being tried together, when the complainants rested their cases, on oral motions by the defendants the bills were dismissed for lack of evidence and appropriate decrees signed and entered. The complainants appeal.

These are statutory creditors' bills brought to reach and apply in payment of the complainants' debts "any property, right, title, or interest, legal or equitable, of a debtor, or debtors, which cannot be come at to be attached on writ, or taken on execution in a suit at law." Revised Statutes, c. 91, § 36, par. 11. The proceeding is in the nature of an equitable trustee process and if a creditor would bring himself within the purview of the statute, he must allege that the complainant is a creditor, the principal defendant a debtor having some valuable legal or equitable interest not exempted by law from attachment or seizure, of such a nature or so situated that it cannot be reached by common-law process against the debtor, and the property is held by some third person who may be considered an equitable trustee of the debtor. Donnell v. Railroad Co., 73 Me. 567; Lord v. Collins, 79 Me. 227, 9 A. 611; Tarbox v. Palmer, 110 Me. 436, 441, 86 A. 847. These allegations are jurisdictional. Lakin and Gould y. Chartered Company, 111 Me. 556, 561, 90 A. 427. If lacking, as in all other suits in equity, the error is fatal in every stage of the cause and cannot be cured by consent of the parties. When inspection of the pleadings makes it manifest that it has no jurisdiction, it becomes the duty of the court to stay proceedings and dismiss the action. Chalmers v. Hack, 19 Me. 124; Chase v. Palmer, 25 Me. 341; Hill v. Moors, 224 Mass. 163, 112 N.E. 641; Whitehouse Eq.Prac, First Ed., § 193; 15 C.J. p. 852.

Tested by the foregoing rules, the bills are insufficient. Each sets forth only that the "plaintiff is informed" that the defendant L. S. Bean Company has in its possession certain properties of the defendant Fred E. Hall which cannot be reached by legal process. There is no positive averment that such is a fact. And the allegations as to the claim of Georgia Hall to the property of her husband, Fred E. Hall, are of like tenor, and made solely on information. Such allegations in equity raise- no issue and are fatally defective. Robinson v. Robinson, 73 Me. 170, 177; Messer v. Storer, 79 Me. 512, 11 A. 275; Bailey v. Worster, 103 Me. 170, 68 A. 698; Whitehouse Eq.Prac, First Ed., § 208.

Nor can the bills be maintained for discovery only. They are brought primarily for relief and incidentally for discovery. Under such bills, if the complainant is not entitled to relief, he cannot have discovery. Coombs v. Warren, 17 Me. 404, 409; Emery v. Bidwell, 140 Mass. 271, 3 N.E. 24; Whitehouse Eq.Prac, First Ed., § 115.

It is unnecessary to consider at length...