Eagan v. Luby

• Decision Date: 29 November 1882
• Citation: 133 Mass. 543
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Margaret T. Eagan, administratrix, v. Patrick Luby & trustee

133 Mass. 543

Margaret T. Eagan, administratrix, v. Patrick Luby & trustee

Supreme Court of Massachusetts

November 29, 1882

Bristol. Trustee process. The writ was dated June 7, 1880 and was served the next day. The city of Fall River, summoned as trustee, answered that, at the date of service upon it, it had in its hands the sum of $ 135, money earned by the defendant. Thomas Fanton appeared as claimant of the funds in the hands of the trustee. At the trial in the Superior Court without a jury, Brigham, C. J., ruled that the plaintiff was entitled to recover $ 56.55, the amount found due by an auditor to whom the case had been referred; that the claimant was entitled to the money in the hands of the trustee, $ 135 and that the trustee was entitled to be discharged; and ordered judgment accordingly. The plaintiff alleged exceptions, which appear in the opinion.

Exceptions sustained.

J. M. Wood, for the plaintiff.

M. Reed, for the defendant and claimant.

Devens, J. Lord, C. Allen & Colburn, JJ., absent.

OPINION

Devens, J.

The objection that certain entries in the plaintiff's book of accounts were improperly rejected by the auditor, which the plaintiff seeks to discuss here, cannot be considered. Had the plaintiff desired to raise the question of their admissibility, he should have offered the evidence at the trial in the Superior Court, as he may offer any evidence there, whether it has been received or not by the auditor, or should have moved to recommit the report. Allen v. Hawks, 11 Pick. 359. Briggs v. Gilman, 127 Mass. 530. It does not appear even to have been presented to the presiding judge, who tried the case and who correctly rendered judgment for the plaintiff in the amount found by the auditor, his report being the only evidence. Holmes v. Hunt, 122 Mass. 505.

A more important question concerns the validity of the assignment made by the defendant on July 1, 1879, which purported to transfer for a good consideration all sums that might become due to him from the city of Fall River on or before July 1, 1880. The defendant had held for some two or three years an employment by virtue of the annual election of a committee on public property of the city of Fall River. This committee was entitled to make the election and appointment of the janitors of the public buildings, one of which positions was the employment referred to, and to fix their salaries. On July 1, 1879, the defendant held the position of janitor of the Slade Mill Public School, by virtue of an election thereto in the earlier portion of that year. On February 5, 1880, he was re-elected by the then existing committee for the term of one year, and his salary was fixed by them. At the time the trustee process was served, which was on June 8, 1880, there was due to the defendant the sum of $ 135, or three months' pay, which had been earned subsequently to the appointment made on February 5, 1880.

The plaintiff contends that the assignment was an attempt to assign, not only what might become due to the defendant under the contract existing between the defendant and the city of Fall River on ...