Redfield v. Abbott Shoe Co.

• Decision Date: 06 February 1956
• Citation: 333 Mass. 551,132 N.E.2d 165
• Parties: Emily M. REDFIELD v. ABBOTT SHOE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 165

132 N.E.2d 165

333 Mass. 551

Emily M. REDFIELD v. ABBOTT SHOE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 10, 1955.

Decided Feb. 6, 1956.

M. H. Kramer, Boston, for defendant.

Before QUA, C. J. and RONAN, WILKINS, WILLIAMS and WHITTEMORE, JJ.

RONAN, Justice.

The plaintiff, the holder and payee of a promissory note, brought this action of contract against the defendant, the maker of said note, to collect $1,000, the principal of the note, and interest of $174.18. The note was dated December 15, 1951, and due June 15, 1952. This action was commenced by trustee process in which a bank was named as trustee. The trustee answered that, at the time of the service of the writ upon it, it had on its books a credit of $670.36 after deducting $5 in connection with the service of the process upon it, and that its records also disclosed an outstanding unsecured indebtedness amounting to $12,500 maturing December 23, 1954; that it reserved all rights of set-off as provided by law; and that it had no knowledge whether the said credit is in fact the goods, effects, or credits of the defendant, and submitted itself to examination. The ad damnum of the writ was $3,000. The defendant filed a motion to dismiss on the ground that the action was in violation of G.L. (Ter.Ed.) c. 223, § 42A, inserted by St.1943, c. 234, § 1. After a hearing upon the motion to dismiss, the judge took the following action as appears from the docket: 'The court on its own motion. Ad damnum of writ is reduced to $1,500. Deft's motion to dismiss denied.' Subsequently the judge signed a report which concluded as follows: 'The defendant claiming to be aggrieved by the denial of its motion to dismiss and by the court's failure to pass upon its requests for rulings, I hereby report the same to the Appellate Division for determination.' The Appellate Division dismissed the report and the defendant appealed to this court.

The failure of the judge to pass upon any of the defendant's requests for rulings was the equivalent of their denial. John Hetherington & Sons, Ltd. v. William Firth Co., 210 Mass. 8, 18, 95 N.E. 961. We need not consider the requests separately for the defendant makes the single contention that there was error in the denial of its motion. A motion to dismiss lies if an error of law is shown upon the face of the record. Tyler v. Boot & Shoe Workers Union, 285 Mass. 54, 55, 188 N.E. 509; Summers v. Boston Safe Deposit & Trust Co., 301 Mass. 167, 169, 16 N.E.2d 670; Chandler v. Dunlop, 311 Mass. 1, 4, 39 N.E.2d 969.

The defendant contends that trustee process was void and beyond the jurisdiction of the court to entertain because the maintenance of an action by a trustee writ with an ad damnum of $3,000 on a claim amounting to $1,174.18 alleged to be due on the defendant's note was for a larger sum than permitted by G.L. (Ter.Ed.) c. 223, § 42A, inserted by St.1943, c. 234, § 1.That statute reads as follows: 'In an action or suit for an amount which is liquidated or ascertainable by calculation, no attachment by trustee process or otherwise shall be made for a larger sum than the amount of the claim and such additional amount as is reasonably necessary to include interests thereon and costs likely to be taxed in the action.' It does not appear that any attachment was made on any property except that held by the bank named as trustee. It is indisputable that the only amount that the plaintiff has actually attached was $670.36. The section only prescribes the limitation of the amount for which an attachment 'shall be made.' No attachment was made in excess of this amount.

The defendant would have us read section 42A as meaning that the mere serving of a trustee writ upon one named as trustee in an action for an amount liquidated or ascertainable by calculation, where the ad damnum is unreasonably in excess of that amount together with costs, constitutes a violation of that section. We do not agree. As already shown this section applies only to actual attachments. Its legislative history supports that view. It first appeared in our statutes as St.1943, c. 234, § 1. The second section of this c. 234 amended G.L. (Ter.Ed.) c. 223, § 114, which then so far as material read as follows: 'If an excessive or unreasonable attachment, by trustee process or otherwise, is made on mesne process, the defendant or person whose property has been attached may apply in writing * * * 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 * * *. If, upon a summary hearing of the parties, it is found that the action is one to recover for an amount which is liquidated or ascertainable by calculation, and the attachment is for a larger sum than the amount of the claim and such additional amount as is reasonably necessary to include interest thereon and costs likely to be taxed * * * the court shall reduce or dissolve the attachment * * *.' These two sections, section 42A and section 114, are different parts of the same chapter and must, if possible, be construed as harmonious parts of the same legislative act. Brooks v. Fitchburg & L....