Reynolds v. Missouri, K.&T. Ry. Co.

• Citation: 112 N.E. 859,224 Mass. 253
• Parties: REYNOLDS v. MISSOURI, K. & T. RY. CO. et al.
• Decision Date: 20 May 1916
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 253

112 N.E. 859

REYNOLDS

v.MISSOURI, K. & T. RY. CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1916.

Report from Superior Court, Suffolk County; W. C. Wait, Judge.

Proceedings by Thomas M. Reynolds against the Missouri, Kansas & Texas Railway Company and others. Reported to the Supreme Judicial Court for determination whether plaintiff's appeal from decrees discharging trustees should be dismissed. Decree for trustees affirmed.

Tyler, Corneau & Eames and William C. Rice, all of Boston, for plaintiff.

J. L. Thorndike and F. V. Barstow, both of Boston, for trustees.

RUGG, C. J.

This case has been reported by a judge of the superior court for determination as to the correctness of his rulings made subsequent to discharging ten corporations named in the writ as trustees of the principal debtor.

1. No contention is made that the trustees were not discharged rightly. Return of service upon a person simply ‘as agent’ of a party is insufficient. Kimball v. Sweet, 168 Mass. 105, 46 N. E. 409;Lowrie v. Castle, 198 Mass. 82, 87, 83 N. E. 1118.

2. The plaintiff appealed from the decree discharging the trustees and awarding costs and attorneys' fees in their favor against the plaintiff. One question is, whether these appeals may be entered in this court forthwith (Griffin v. Griffin, 222 Mass. 218, 110 N. E. 296), or whether they should wait until the main case is disposed of on its merits. It is settled that ordinarily no case can be entered in this court until it is ready for final disposition, and that interlocutory matters will not be heard until the case is ready for judgment (Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343), where the reasons are stated and the authorities reviewed. In a certain sense orders in reference to a person summoned as trustee may be termed interlocutory. They are so when he is charged, for then they depend on the final judgment which may be entered. But a trustee is a party. When he is discharged, that is a final judgment so far as he is concerned. His relations to the main matter are such that, if entitled to a discharge, he cannot be affected by any decision as to the merits between the plaintiff and defendant. Having no interest in the principal controversy, he stands in a peculiar relation to the cause and is entitled to the protection of the court so far as is reasonably practicable. The order for discharge of a trustee being final in its nature and not susceptible of modification by other proceedings in the case, that order is ripe for consideration in the ordinary case even though the chief controversy has not terminated. Sprague v. Auffmordt, 183 Mass. 7, 66 N. E. 416;Hutchins v. Nickerson, 212 Mass. 118, 98 N. E. 791. The case of Brennan v. McInnis, 172 Mass. 247, 51 N. E. 974, plainly is distinguishable. But the present decision is confined strictly to these facts and does not narrow the general rule illustrated in Weil v. Boston Elevated Railway, ubi supra.

3. The plaintiff has presented an elaborate argument based upon the history of R. L. c. 189, §§ 67, 68, and 69, to the effect that a trustee should not be awarded costs unless he appears and answers and even though his preliminary plea to the jurisdiction is sustained. It is not necessary to review the statutes or to enter into a full discussion of the subject.

The plain words of section 69 are that any one summoned as trustee, who is discharged, shall have judgment for costs and charges. This seems to be the import of earlier statutes, at least as far back as Rev. Stat. 1836, c. 109, §§ 49, 50, and 51. The practice has been established contrary to the plaintiff's contention. It was stated by Chief Justice Parsons in Wilcox v. Mills, 4 Mass. 218, at page 220, by way of illustration, that one summoned as trustee to a court without...