Fleda A. Grant v. Ernest E. Goodrich & Tr
| Decision Date | 03 May 1938 |
| Citation | 199 A. 246,109 Vt. 462 |
| Parties | FLEDA A. GRANT v. ERNEST E. GOODRICH & TR |
| Court | Vermont Supreme Court |
February Term, 1938.
Trustee Process Is Purely Statutory---Motion to Discharge Trustees Treated as Claim to Fund---Effect of Failure to Request Findings of Fact and to Except to Failure of Court to Make Findings---Hearing on Motion to Discharge Trustees Not Trial of Question of Fact Triable by Jury within P. L 2069---Parties Not Entitled under P. L. 1803 and 1777 to Trial by Jury within P. L. 2069 Where Claim Is Made to Fund Held on Trustee Process---Evidence as to Circumstances of Assignment of Mortgage to Husband and Wife Held Properly Excluded Where Not Shown to Be in Fraud of Creditors---Objection to Exclusion of Such Evidence on Ground Assignment Did Not Create Tenancy by Entireties Held Not Sufficiently Stated Below---Burden on Excepting Party to Show Point of Exception Was Made Clear to Trial Court.
1. Proceeding known as trustee process in our practice is purely statutory, and statute relating thereto does not provide for trying question of liability of trustee to principal defendant by motion to discharge trustee.
2. In proceedings under statutes relating to trustee process document entitled "Motion to Discharge Trustees" and purporting to be signed by principal defendant and his wife was treated by Supreme Court as claim under P. L. 1803 to fund in question by principal defendant and his wife as property held by the entirety since it was so treated by parties and court below.
3. In such proceedings, plaintiff's complaint that findings of fact were not made and filed in court below in connection with granting of motion to discharge trustees was unavailing on review where no request for findings was made and no exception taken to failure of court to make and file findings.
4. In such proceedings, hearing by court of so-called motion to discharge trustees was not trial of "a question of fact that entitled either party to trial thereof by jury" within provisions of P. L. 2069 limiting review when such questions are tried by court to facts reduced to writing and filed by court below.
5. Provision of P. L. 1803 that title of claimant to fund held under trustee process shall be tried and determined in same manner as liability of trustee does not entitle either party to such proceedings to trial by jury and therefore does not make filing of findings of fact obligatory in order to procure review under P. L. 2069, since provision of P. L 1777 that questions of fact arising in connection with determination of liability of trustee may, in discretion of court, be submitted to a jury in such manner as court directs, does not entitle either party to jury trial as matter of right.
6. In action for rent in which debtors on mortgage assigned to principal defendant and his wife were summoned as trustees where terms of defendant's lease did not appear and there was no showing that on date assignment of mortgage was recorded any portion of rent was overdue, nor any evidence or offer of evidence tending to show that defendant then owed other debts or that there was any intent, actual or constructive, to defraud creditors by assignment of mortgage to defendant and his wife, defendant had right to make gift of any of his property to his wife to any amount except against then existing creditors, and title to mortgage taken in joint names of defendant and wife would be good whether consideration was furnished by defendant alone or jointly with his wife, so that evidence offered to show that mortgage was previously assigned in blank and transferred to defendant alone in payment of indebtedness of holder of mortgage to him alone was properly excluded.
7. In such action, where evidence offered to show that mortgage was first assigned in blank and transferred to principal defendant in payment of indebtedness due him alone from holder of mortgage and that names of defendant and his wife were subsequently inserted as assignees was excluded as immaterial, objection to exclusion of such evidence on ground that it would have shown that unity of time, title, interest and possession necessary to create estate by entireties were lacking, held unavailing because it was not made sufficiently clear to trial court that this ground of admissibility was relied upon.
8. It is incumbent upon excepting party to cause it to appear that exception was sufficiently explicit to apprise trial court of real point of it.
ACTION OF CONTRACT in general assumpsit to recover rent against principal defendant and two persons summoned by trustee process. On appeal to county court from judgment of a justice of the peace the action was amended to an action of debt on a judgment of a justice of the peace. Judgment for the plaintiff against the principal defendant and hearing upon motion of principal defendant and his wife to discharge the trustees at the June Term, 1937, Orange County, Adams, J., presiding. Motion to discharge the trustees granted. The plaintiff excepted. The opinion states the case.
Judgment affirmed.
Stanley L. Chamberlin for the plaintiff.
Ernest E. Goodrich for the claimants.
Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
This is an action in general assumpsit brought on August 25, 1936, before a justice of the peace in which the plaintiff had judgment against the principal defendant and against the trustees summoned therein, the claim being for rent of an office accruing between December 1, 1934, and April 10, 1935. Appeal was taken to Orange county court and at the June, 1937, term the action was amended into one of debt on a prior justice of the peace judgment secured against the defendant on April 11, 1935. Judgment was thereafter rendered at said term against the principal defendant, Ernest E. Goodrich, and a hearing was had on the motion of the defendant and his wife to discharge the trustees, which motion the court granted. The plaintiff brings the case to this Court on exceptions to the granting of this motion, and to the exclusion of certain testimony offered by the plaintiff during the hearing and excluded by the court.
The plaintiff complains that the court failed to file findings of fact developed at the hearing of this motion, although it does not appear that such findings were requested and no exception was taken to the failure to make and file findings. The nature and status of the motion to discharge the trustees are not altogether clear. The proceeding known as trustee process in our practice is purely statutory. A person summoned as trustee is required to appear before the court and make disclosure of the goods, chattels, rights or credits of the principal defendant which he may have in his possession. P. L. sec. 1775 provides that in lieu of such disclosure the person summoned as trustee may make a declaration setting forth such facts as he deems material and submit himself thereupon to a further examination on oath, and such declaration with the further examination, if any, shall be sworn to. The principal defendant may secure the discharge of the trustee by filing a bond as provided by P. L. secs. 1766 to 1770. But if the person summoned as trustee is not so discharged and makes no disclosure, he shall be adjudged a trustee and judgment may be rendered against him for the amount of damages and costs recovered by the plaintiff in the action. Sections 1771 and 1772. The statute does not provide for trying the question of liability of the trustee to the principal defendant by motion to discharge the trustee.
The statute also outlines the procedure to be followed when it appears that the goods, effects or credits in the hands of a supposed trustee are claimed by another person. P. L. sec 1803 provides...
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