Karrick v. Trask

• Decision Date: 28 May 1921
• Citation: 131 N.E. 216,238 Mass. 476
• Parties: KARRICK v. TRASK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 476

131 N.E. 216

KARRICK

v.TRASK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 28, 1921.

Appeal from Supreme Judicial Court, Suffolk County.

Suit by James L. Karrick against William R. Trask and another. From an interlocutory decree sustaining a demurrer and a final decree dismissing the bill, plaintiff appeals. Affirmed.

The object of the suit was to set aside a judgment, to enjoin any proceedings under the judgment and execution thereon, and any assignment, pledge, or disposition of the rights thereunder and to obtain other relief. The bill alleged that the writ in the action in which the judgment was recovered was served by attaching real estate and leaving a copy of the writ at premises described as the last and usual place of abode of the defendants, though plaintiffs knew defendants no longer resided in Massachusetts, and that such premises had been taken on foreclosure of a mortgage.

Logan, Lyne & Woodworth, of Boston (Richard C. Evarts, of Boston, of counsel), for appellant.

Robert Homans and William S. Downey, both of Boston, for appellees.

BRALEY, J.

The demurrer that the plaintiff has not stated a case which entitles him to relief in equity admits all the material allegations of the bill. At the date of service of the writ in the action at law at his last and usual place of abode the defendant, now the plaintiff in the present suit, was absent from the commonwealth, and his absence continued until after the entry of judgment. No further notice of the pendency of the action having been given under R. L. c. 170, the judgment was reversible on a writ of error. Porter v. Prince, 188 Mass. 80, 74 N. E. 256;Langdon v. Doud, 6 Allen, 423, 83 Am. Dec. 641. See Nichols v. Vaughan, 217 Mass. 548, 551, 105 N. E. 376;Joyce v. Thompson, 230 Mass. 254, 119 N. E. 777. And the remedy at law being ample there is no relief in equity. Hildreth v. Thibodeau, 186 Mass. 83, 71 N. E. 111,104 Am. St. Rep. 560; Stephenson v. Davis, 56 Me. 73-75.

The demurrer however being general, it will be overruled if any of the claims stated in the bill come within the jurisdiction of the court. Granara v. Italian Catholic Cemetery Association, 218 Mass. 387, 105 N. E. 1073; Kimberly v. Sells, 3 Johns. Ch. (N. Y.) 467. It is further alleged, relying on the doctrine of Brooks v. Twitchell, 182 Mass. 443, 65 N. E. 843,94 Am. St. Rep. 662, that the defendant Trask, who was then counsel for the plaintiffs, but has since been substituted for them as plaintiff and is the judgment creditor, knew when the writ was served that the defendant ‘no longer resided in Massachusetts,’ and the return of service having been false, he should be enjoined from enforcing the judgment, which was fraudulently obtained. It is unnecessary to decide this question. The bill further alleges that after the action had been entered and was pending the defendant appeared specially and pleaded his discharge in bankruptcy in bar of the plaintiff's recovery.

[5] While the court had jurisdiction of the action brought to recover the amount due on a promissory note made jointly by him and his wife, who also had been joined as a party, this did not authorize the entry of a...