First People's Trust v. Dist. Court of Lawrence

• Decision Date: 04 February 1925
• Citation: 146 N.E. 353,251 Mass. 206
• Parties: FIRST PEOPLE'S TRUST v. DISTRICT COURT OF LAWRENCE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 206

146 N.E. 353

FIRST PEOPLE'S TRUST

v.DISTRICT COURT OF LAWRENCE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 4, 1925.

Error to District Court of Lawrence; Chandler, Special Judge.

Action of contract by the First People's Trust against one Wheatley, in which plaintiff recovered judgment. Execution was returned unsatisfied, and plaintiff sued out poor debtor citation under G. L. c. 224, returnable to the district court of Lawrence, and on hearing thereon court ordered defendant to convey title to a certain truck to petitioner, and that defendant, on compliance with order, would be entitled to poor debtor's oath, and plaintiff petitions for writ of error, to be directed to the district court of Lawrence, praying that order and judgment be reversed. Reversed.

W. Hirsh, of Boston, for plaintiff in error.

Cregg & Cregg, of Lawrence, for defendants in error.

SANDERSON, J.

This is a petition for a writ of error. The petitioner recovered judgment against the defendant Wheatley in the sum of $342.08 damages and $9.11 costs, and execution issued therefor. The judgment remained unsatisfied, and on June 7, 1923, the petitioner sued out a poor debtor citation against Wheatley under G. L. c. 224, returnable to the district court of Lawrence June 25, 1923, when the debtor failed to appear and a default was entered. On June 28, 1923, a certificate was issued by the district court authorizing his arrest. On March 6, 1924, he was arrested and taken before a master in chancery, before whom he recognized with surety. The condition of the recognizance was that Wheatley would within thirty days from the time of his arrest deliver himself up for examination before a magistrate authorized to act, giving notice of the time and place in the manner provided in G. L. c. 224, and abide the final order of the magistrate thereon. On March 26, 1924, Wheatley took out a citation from the district court of Lawrence, returnable April 4, 1924, by means of which the petitioner was notified that Wheatley desired to take the oath for the relief of poor debtors. At the time appointed for hearing he was examined on written interrogatories, and it was disclosed that he was possessed of a truck valued at more than $500 which he had offered the petitioner and the petitioner had refused to receive. On April 11, 1924, the matter came on to be heard before the district court of Lawrence, when the justice presiding made an order that the debtor execute and deliver to the creditor or a person in the creditor's behalf by proper instrument a transfer or conveyance of said truck, and all his right, title and interest therein to be applied to the satisfaction of the judgment and sosts of proceedings; and that the debtor would be entitled to the oath when the order was complied with. The case was then continued to April 28, 1924. The petitioner refused to accept the transfer and delivery of the property on the ground that the court had no legal power to make such order. It then brought this petition for a writ of error, praying that the order and judgment be reversed. To this writ the defendants plead that there is no error; and further answering allege that the property was an automobile sold to the defendant Wheatley by the plaintiff in error with reservation of title in itself until fully paid for, and that the defendant in error offered said automobile to the plaintiff, which it refused.

[1] Chapter 224 of the General Laws is entitled ‘Arrest on Civil Process.’ The first 18 sections relate to arrest on mesne process and on execution. These are followed by the provisions relating to discharge from arrest. In the proceedings which lead up to the arrest of the debtor, either on mesne process or execution, the creditor is the moving party. But in those which result in the administering or refusing to administer the oath for the relief of poor debtors, the debtor is the moving party. They are ‘proceedings initiated by the debtor for the...