John A. Wogan, Inc. v. Tremont Trust Co.

• Decision Date: 15 September 1922
• Citation: 242 Mass. 505,136 N.E. 394
• Parties: JOHN A. WOGAN, Inc., v. TREMONT TRUST CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 505

136 N.E. 394

JOHN A. WOGAN, Inc.,

v.TREMONT TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 15, 1922.

Case Reserved from Supreme Judicial Court, Suffolk County.

Suit by John A. Wogan, Inc., against the Tremont Trust Company and another. Reserved by a single justice, on the bill, the amendment thereto, and the answer, for the determination of the full court. Bill dismissed.

The bill alleged that on November 2, 1920, plaintiff commenced an action against Isadore Krasin and Harry Krasin, copartners, by a writ of trustee process served on the trust company on November 3d; that plaintiff subsequently recovered judgment against the partners named, and issued execution against them and their goods and credits in the hands of the trust company; that the deputy sheriff made demand on the trust company and the commissioner of banks to discover, expose, and subject the goods, effects and credits in its hands to be taken in execution, but that the trust company refused, and the execution was returned unsatisfied. It further alleged facts concerning deposits by the partners as partners and individually, and prayed for such order or decree as would adequately protect plaintiff's rights with reference to the attachment of such bank accounts, and for an order or decree directing defendants to pay plaintiff the amount to which it was entitled by reason of such attachments. Defendants demurred for want of necessary parties, and on the grounds that the bill did not contain allegations sufficient to show that plaintiff was entitled to any relief in equity, in that it appeared that such rights as it had could be and had been established in an action at law, and that plaintiff had not shown facts on which it was entitled to any relief against defendants, and also answered that the defendant commissioner of banks had taken possession of the property and business of the trust company, and still retained such possession, and was liquidating the trust company, and defending such action in the name of the trust company. The answer also, without waiving the demurrer, admitted the allegations of the amended bill, and prayed the judgment of the court thereon.

1. Banks and banking k317-Attachment by trustee process not dissolved by commissioner taking possession.

Assuming that, after the commissioner of banks has taken possession of the property of a trust company in accordance with G. L. c. 167, s 22, the funds in his hands are not subject to attachment, such action does not dissolve any attachment by trustee process previously made, and the lien thereof still continues.

2. Banks and banking k317-Establishment of lien not function of court of equity, but incident to action in which created.

The establishment of the lien of an attachment by trustee process made prior to the taking possession by the commissioner of banks of the property of a trust company is not the proper function of a court of equity, but is an incident of the action in which the lien was created.

3. Banks and banking k317-Obligation of commissioner to satisfy attachment lien may be determined, when amount of lien and credits on which it exists have been settled.

When amount of lien of attachment by trustee process made prior to taking possession of property of trust company by commissioner of banks and the credits on which it exists have been judicially settled, the obligation of the commissioner to satisfy the lien and the sources liable for its payment may be determined, if necessary, under G. L. c. 167, s 36, authorizing the Supreme Judicial Court or any justice to enforce the provisions of the sections of that chapter relative to the liquidation of banks or trust companies.

Albert F. Flint, of Boston, for plaintiff.

Daniel L. Smith, of Boston, for defendants.

JENNEY, J.

On November 3, 1920, Isadore and Harry Krasin as copartners had to their credit in the commercial department of the Tremont Trust Company $435.70, of which $284.44 was subject to an attachment by trustee process discharged in the following month; Isadore Krasin had in the same department $1,314.40, of which he was permitted to withdraw $1,300 ten days later; and Harry Krasin had $519.62 in the savings department of the trust company.

On the day stated, a writ in an action in the municipal court of the city of Boston by the plaintiff against the Krasins as partners, in which the bank was named...