Long v. George
| Decision Date | 29 March 1935 |
| Parties | LONG v. GEORGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
LONG
v.
GEORGE.
Supreme Judicial Court of Massachusetts, Suffolk.
March 29, 1935.
Suit in equity by Georgena L. Long against Charles George. From a final decree of the superior court dismissing the bill, plaintiff appeals.
Decree reversed, and final decree entered for plaintiff.
DONAHUE, LUMMUS, and QUA, JJ., dissenting.
[195 N.E. 378]
Appeal from Superior Court, Suffolk County; Goldberg, Judge.
[290 Mass. 317]R. B. Owen and E. R. Anderson, both of Boston, for appellant.
S. W. Saltmarsh, of Boston, for appellee.
FIELD, Justice.
This is a suit in equity brought in the Superior Court by Georgena L. Long against Charles George. Charles George had previously brought in the Municipal Court of the City of Boston against George A. Long, father of the present plaintiff, an action at law to recover rent under a written lease of a store in Boston and had caused an attachment to be made on January 15, 1930, of goods in the store as the property of George A. Long. Charles George obtained a judgment in this action and the property attached was sold on execution at public auction on March 31, 1930, to said Charles George. The present plaintiff alleges in her bill that she was the owner of the property so attached and sold, that George A. Long had no right, title or interest therein either at the time of the attachment or at the time of the sale, and that the sale transaferred no right, title or interest therein [290 Mass. 318]to him as purchaser, and prays for an order that the defendant deliver to her the property in question and for damages. The case was referred to a master who made a report in which he found facts in detail
[195 N.E. 379]
and found specifically that the goods sold on execution were at that time the property of George A. Long and not the property of the plaintiff. By an interlocutory decree the plaintiff's exceptions to the report were overruled and the report was confirmed, and by a final decree the bill was dismissed with costs. The plaintiff appealed from the final decree.
The findings of the master include findings in regard to the action at law brought by Charles George against George A. Long. In addition to the facts already stated the master found that while the action at law was pending the present plaintiff ‘filed a petition to discharge the attachment * * * [therein], setting forth that she was the lawful owner of the material held under said attachment,’ and that this ‘petition was amended, heard and allowed on February 28, 1930.’ He found that the ‘goods sold at the execution sale’ were the same as the ‘goods listed by the plaintiff as the subject matter of her petition to dissolve the attachment.’
The plaintiff contends that the order discharging the attachment in the action at law was an adjudication, binding upon the defendant in the present proceeding, that the plaintiff was the owner, at the time of the attachment and at the time of the sale on execution, of the property involved in this suit.
This contention is sound with respect to the time of the attachment. The subject matter of the proceeding to discharge the attachment and the parties thereto were within the jurisdiction of the court. The petition was authorized by G. L. (Ter. Ed.) c. 223, § 114, which is as follows: ‘If an excessive or unreasonable attachment is made on mesne process, the defendant or person whose property has been attached may apply in writing, in any county, to a justice of the court to which such process is returnable, for a reduction of the amount of the attachment or for its discharge; and such justice shall order a notice to the plaintiff, or, if the plaintiff is a nonresident, to his attorney, which shall [290 Mass. 319]be returnable before himself or any other justice of the same court as speedily as circumstances permit. If, upon a summary hearing of the parties, it is found that the attachment is excessive or unreasonable, the justice shall reduce or dissolve the attachment or order a part of the goods or estate to be released.’ In Shea v. Peters, 230 Mass. 197, 119 N. E. 746, it was decided that a person not a party to the original action whose property had been attached as the property of the defendant therein can invoke the aid of this statute. And both the present plaintiff and the present defendant were parties to the proceeding for the discharge of the attachment.
The Municipal Court of the City of Boston (see G. L. [Ter. Ed.] c. 218, § 1) is subject to the provision applicable to district courts generally that ‘District courts shall be courts of record. They shall be courts of superior and general jurisdiction with reference to all cases and matters in which they have jurisdiction, and * * * like presumption shall be made in favor of proceedings of such courts as would be made in favor of proceedings of other courts of superior and general jurisdiction.’ G. L. (Ter. Ed.) c. 218, § 4. The master states that the petition was ‘heard,’ but, even apart from this recital, it is to be presumed that the proceedings were regular and, consequently, that there was compliance with the requirement of the statute that there be ‘a summary hearing of the parties.’ Petition of Bullock, 254 Mass. 14, 17, 149 N. E. 604;Rosen v. United States Rubber Co., 268 Mass. 403, 406, 167 N. E. 655, 65 A. L. R. 1299.
The order discharging the attachment did not fail to be conclusive on the parties thereto because a decision after only a ‘summary hearing.’ That proceedings for discharging attachments are characterized as ‘summary’ does not necessarily prevent decisions therein being conclusive adjudications with respect to matters within the scope of the proceedings. Compare G. L. (Ter. Ed.) c. 239. Edwards v. Columbia Amusement Co., 215 Mass. 125, 102 N. E. 268. The reasons for holding decisions in summary proceedings not conclusive upon the same parties in other cases are that such proceedings do not permit full hearings on the merits and are not reviewable by an appellate court. See Freeman on Judgments[290 Mass. 320](5th Ed.) §§ 667, 668, 843-845. See also McCarthy v. William H. Wood Lumber Co., 219 Mass. 566, 569, 107 N. E. 439.
These reasons are not applicable to a proceeding for the discharge of an attachment brought by a person, other than the defendant in the original action, alleging his ownership of the property attached. Nothing in the statute authorizing such a discharge or in the nature of the proceedings authorized thereby precludes full hearings on the merits of the questions involved. The provision in the statute (G. L. [Ter. Ed.] c. 223, § 114) for a ‘summary hearing’ must be read with the provision that the notice ordered upon an application for discharge of an attachment ‘shall be returnable * * * as speedily as circumstances permit.’ The obvious purpose
[195 N.E. 380]
of these provisions is to provide for a speedy hearing. But a speedy or summary hearing does not imply an inadequate hearing. Compare G. L. (Ter. Ed.) c. 248, §§ 4, 15. The provision of the statute authorizing an application for discharge of an attachment by a person other than the defendant ‘whose property has been attached’ implies that the issue to be determined on such an application is the ownership of the property by such person. And it is not to be thought that the Legislature intended that such person should continue to be deprived of rights in the property attached or that the plaintiff should be deprived of rights under the attachment upon less than a full hearing. This is true though the question in regard to her rights is subsidiary to the main question in the action in which the attachment was made. See Shea v. Peters, 230 Mass. 197, 200, 201, 119 N. E. 746. Nor does the absence of a provision for jury trial indicate that a full hearing is not contemplated. Such a trial where, as here, not required for other reasons is not essential to a full hearing. But the plaintiff in an action in which an attachment is made is not entitled to such a trial on the issue of his right to an attachment lien, even if the ownership of the property attached is thereby drawn in question (Shea v. Peters, 230 Mass. 197, 200-201, 119 N. E. 746, see Stockbridge v. Mixer, 215 Mass. 415, 418, 102 N. E....
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