Jamnback v. Aamunkoitto Temperance Soc., Inc.

• Decision Date: 03 October 1930
• Parties: JAMNBACK v. AAMUNKOITTO TEMPERANCE SOC., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 45

172 N.E. 884

JAMNBACK

v.AAMUNKOITTO TEMPERANCE SOC., Inc., et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 3, 1930.

Appeal from District of Fitchburg; Thomas F. Gallagher, Judge.

Action commenced by trustee process in the district court by Signe N. Jamnback against the Aamunkoitto Temperance Society, Inc., alias, and trustees. The finding of the judge charged the trustees, and the case was reported to the Appellate Division, which ordered the report dismissed. From such order, the trustees appeal.

Order dismissing report affirmed.

John G. Annala, of Fitchburg, for appellants.

Samuel M. Salny, of Fitchburg, for appellee.

CROSBY, J.

This is an action of contract, commenced by trustee process in the district court of Fitchburg, in which the plaintiff seeks to recover on a promissory note where the principal defendant is the maker. The finding of the judge charged the trustees, and they bring the case to this court, contending that they are aggrieved by the finding.

After the bringing of the action a motion was filed by the plaintiff for a special precept authorizing the attachment of certain personal property of the defendant located on its premises and on which property the trustees claim to have a mortgage. This motion was allowed and the precept issued. The officer's return on the precept showed that he attached the defendant's personal property on premises occupied by it; that subsequently he removed the personal property so attached as the result of a demand made upon him to do so by the attorney for the defendant. The death of John Niemi, named as one of the trustees in the special precept, occurred before the return day, and his death was suggested to the court. The trustees named in the special precept answered that they had no goods, effects or credits of the defendant in their hands or possession at the time of the service of the precept upon them and that the defendant owed them $1,600 secured by a mortgage duly recorded, and they offered to submit themselves to be examined under oath, and prayed that they be discharged. The trustees were examined in writing and orally. At the examination it appeared that they had no goods, effects or credits in their possession belonging to the defendant at the time of the service of the special precept on them, but that the defendant owed them $1,600 secured by a mortgage given to them, and to the deceased trustee Niemi, by the defendant. The mortgage was in common form and covered the property attached; it contained a clause giving the mortgagor possession until a breach thereof. There was evidence from which the judge could find that the mortgage was invalid as against the plaintiff. The recitals in the officer's return were the only evidence as to who had possession of the property attached, except that there was no claim that the mortgagees had taken possession of the property prior to breach of the conditions, or that there was any breach of the mortgage at the time of the attachment. At the close of the evidence the trustees requested the judge to rule (1) that on all the pleadings and evidence the trustees be discharged; (2) that certain named persons summoned as trustees in the special precept were so summoned under G. L. c. 246, and not as trustees for the mortgagor under G. L. c. 223 (section 79).

On January 17, 1930, the judge found that the trustees were summoned on the special precept under G. L. c. 246, and not as trustees under G. L. c. 223, as they had ‘not been described as trustees of the mortgagor in said precept, although the said personal property was in the possession of the defendant at the time of the attachment, and was attached by said special precept.’ Therefore the judge ordered that the trustees be discharged. He stated, however, that if his decision was found by the Appellate Division to be erroneous, then he found that the mortgage was invalid as against the plaintiff, and that the trustees should be charged. The trustees filed thirteen requests for rulings. The judge gave the first, second and fourth, and denied the others.

On January 18, 1930, and before the case went to judgment, the plaintiff filed a motion to the effect that the court amend the special precept previously issued, so that it would recite that the alleged trustees ‘are summoned as mortgagees of the defendant's property.’ The plaintiff marked the motion for hearing on January 24, 1930, and duly filed a certificate of his having notified counsel for the trustees of the filing of the motion and having sent a copy thereof, and of the marking of the same for hearing on January 24. On the last-named date the motion was allowed without the trustees being represented. They requested that the allowance of the motion be reported. Thereafter the trustees filed a motion to strike out and disallow the plaintiff's motion to amend the special precept, and a motion to set aside the previous finding and reopen the case for further hearing. There was a hearing on these motions on January 31, and the hearing was adjourned to February 1 to permit counsel for the trustees to be present. On February 1 counsel for the trustees filed an affidavit stating that he had not been served with a copy...