Palmer v. Duplex Truck Co.
| Decision Date | 04 June 1918 |
| Citation | 79 N.H. 28,103 A. 943 |
| Parties | PALMER v. DUPLEX TRUCK CO. et al. |
| Court | New Hampshire Supreme Court |
Exceptions from Superior Court, Grafton County; Marble, Judge.
Action by Herbert E. Palmer against the Duplex Truck Company and the Royal Indemnity Company. On defendant's exceptions to order granting plaintiff's motions. Case discharged.
The plaintiff is a resident of the county; the defendant is described in the writ as a corporation doing business at Boston, Mass., and the trustee as a corporation doing business as a nonresident company under license in this state. The trustee was summoned by service upon the insurance commissioner. There was no service upon the principal defendant, and upon the entry of the writ the plaintiff moved to continue for notice and for leave to take the trustee's disclosure. The defendant, appearing specially, moved to dismiss for want of jurisdiction and filed affidavits of officers of the defendant and trustee corporations to the effect that, at the time of the service of the writ upon the trustee, the trustee did not have, and had not since had, in its hands any property, money, rights, or credits of the principal defendant, and that the only contract, agreement, or relation existing between them was by virtue of a certain contract of indemnity, or insurance, issued by the trustee to the principal defendant, and that since the service of the writ no liability pad accrued under said contract in favor of the defendant against the trustee. Copies of the insurance contract were attached to the affidavits. From these it appeared that the contract purported to be issued at Boston, Mass., February 7, 1917, and to contain an agreement by the trustee to indemnify the principal defendant against loss arising out of liability to any person for bodily injury by reason of the ownership, maintenance, or use of certain automobiles, if such injury occurred between February 7, 1917, and February 7, 1918; and also against legal liability for damages on account of injury to or destruction of the property of others. The trustee also agreed by the contract to defend in the name and on behalf of the insured all claims or suits for damages for such injuries for which damages the insured was or was alleged to be liable. Subject to exception the plaintiff's motions were granted and the defendant's denied.
Raymond U. Smith, of Woodsville, for plaintiff. Martin & Howe and De Witt C. Howe, all of Concord, for defendant.
Although the principal defendant was a nonresident not served with process before the entry of the suit, the court obtained jurisdiction of the plaintiff's controversy with the trustee by service in this state. Service can be made upon the defendant out of the state only in the event of the attachment of its property in the state. In the orderly disposition of the litigation the first step is the adjudication of the controversy between the plaintiff and the trustee.
The trustee has not given its disclosure, nor has the plaintiff taken it, as either party might have done before the entry of the writ. P. S. c. 245, § 11. Although the court under the rule might have discharged the trustees because of the plaintiff's failure to file its disclosure during the first week of the term (71 N. H. 685), the court had power to relieve the plaintiff and to grant further time for the disclosure. Whitcomb v. Quinlan, 75 N. H. 429, 431, 75 Atl. 525. The conclusion of the court as to what justice required in this matter of procedure is not open to exception.
But without jurisdiction of the defendant acquired by service upon it in this state, the action must be dismissed unless the trustee has in its hands money or property or the defendant. Whitcomb v. Quinlan, supra; Carleton v. Insurance Co., 35 N. H. 162.
To secure an early decision of the question the plaintiff conceded in argument that upon disclosure the facts would appear as stated in the affidavits, with the added fact that the claims he makes against the principal defendant are such as the trustee agreed by its contract to indemnify the defendant against loss or liability therefrom.
The plaintiff in trustee process proceeds against the trustee upon the strength of the defendant's right and title, and in the absence of fraud can recover only what the defendant could against the trustee. To charge the trustee it must appear that the trustee has in his possession property which the principal defendant...
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Forbes v. Boynton
...are not attachable property under RSA 511:1 until liability has been adjudicated and damages determined. He relies on Palmer v. Company, 79 N.H. 28, 103 A. 943 (1918) which followed the earlier cases such as Haven v. Wentworth, 2 N.H. 93 (1819); Swamscot Machine Co. v. Partridge, 25 N.H. 36......
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Robinson v. Dana's Estate
...claimant's action to establish the liability of the estate he may not make the promisor a party by trustee process (Palmer v. Duplex Truck Co., 79 N. H. 28, 103 A. 943), the promisor may thus be joined in a suit upon the judgment obtained (Lombard v. Maguire, etc., Co., 78 N. H. 110, 97 A. ......
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Rocca v. Kenney, 7856
...a majority of the court followed Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966), and overruled Palmer v. Company, 79 N.H. 28, 103 A. 943 (1918), by holding that a New York resident's rights under a motor vehicle liability policy constituted a sufficient property right......
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Wentworth Bus Lines, Inc. v. Windle
...is not filed on time unless the Court grants further time for the disclosure for sufficient cause shown by affidavit. Palmer v. Duplex Truck Co., 79 N.H. 28, 30, 103 A. 943. That the primary duty to file the disclosure is placed on the plaintiff rather than the trustee is further indicated ......