Shaw v. Monson Me. Slate Co.

• Decision Date: 14 December 1901
• Citation: 51 A. 285,96 Me. 41
• Parties: SHAW v. MONSON MAINE SLATE CO. et al.
• Court: Maine Supreme Court

51 A. 285

96 Me. 41

SHAW

v. MONSON MAINE SLATE CO. et al.

Supreme Judicial Court of Maine.

Dec. 14, 1901.

(Official.)

Report from supreme judicial court, Piscataquis county.

Creditors' bill by Milton G. Shaw against the Monson Maine Slate Company and others. Case reported. Bill dismissed.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

A. N. Williams and Enoch Foster, for plaintiff.

H. Hudson and J. B. Peaks, for defendants.

EMERY, J. In this bill in equity the plaintiff has set forth: (1) That he bad recovered a judgment against the Monson Maine Slate Company; (2) that upon the execution issued upon that judgment the officer undertook to seize and sell as the property of the judgment debtor forty $1,000 bonds, numbered from 261 to 300, inclusive, issued by the debtor company as part of an issue of $300,000 of bonds; (3) that the bonds could not be seized and sold upon execution; and (4) that the bonds were in the possession of the officer, and of the First National Bank of Guilford as the bailee of the officer, and were the property of the debtor company, which company had no other property from which the execution could be satisfied. The debtor company, the officer, and the bank were made parties defendant.

The prayers in the bill are (1) that the officer be enjoined from selling the bonds pendente lite; (2) that the bank be enjoined from giving up the bonds to any person pendente lite; (3) that the officer transfer the bonds to some appointee of the court to be sold by him under the court's order for the satisfaction of the plaintiff's judgment; (4) that the bonds be so sold; (5) that the plaintiff be authorized to bid at the sale: (6) for general relief. The injunctions prayed for pendente lite were granted.

To this bill the company demurred, and also answered denying the allegations in the bill, and alleging that the company had never sold or issued the 40 bonds named, and that the officer and the bank bad no right to detain them. The ease was not set for bearing upon the demurrer, but a replication was filed, and the case was then heard by a single justice upon bill, answer, and evidence. No ruling upon the demurrer or the evidence was asked of the justice, but the whole case, with all the evidence, was reported to the law court.

The evidence for the plaintiff disclosed important facts which were known to the plaintiff before filing his bill, but of which he made no mention in the bill, viz.: The 40 bonds had never been sold by the company, nor issued in any other way than pledging, them for some floating indebtedness; and that they had been directly pledged by the company to the plaintiff as security for the debt upon which his judgment was recovered, and that he had deposited them for safe-keeping in the defendant bank.

The plaintiff ignored these facts in his bill, and made it a simple creditors' bill, basing his claim for equitable relief upon the sole ground that be was a judgment creditor, and that the 40 bonds were the property of his judgment debtor, which could not be taken on execution. Rev. St. c. 77, § 6, par. 10.

It must be apparent from the evidence for the plaintiff above cited that a creditors' bill is not his proper remedy. As to this property he is not a mere creditor, and the defendant company is not a mere debtor. He is a pledgee, the holder of the property, with the rights of a pledgee. The defendant company is a pledgor, with the rights of a pledgor. A creditors' bill is manifestly not the proper procedure to determine and enforce the rights of either. Insurance Co. v. Abbott, 127 Mass. 558; Donnell v. Railroad Co., 73 Me. 567. The bill as framed must be dismissed. The plaintiff apparently has ample remedy under Rev. St. c. 91, §§ 57, 58, without any resort to the court.

The plaintiff, at the argument before the law court, apparently realizing that he had mistaken his remedy, asked leave of the law court to reform his bill so that it should be a bill to enforce his rights as pledgee of the property, and suggested that facts could be shown making such a bill necessary to the full enforcement of these rights.

The frequency with which parties in equity cases wait until after issue is joined, the testimony taken, the case beard by a single justice, and then taken by appeal or on report to the law court, before asking for proper amendments, requires us to caution them against such delays. In equity proceedings the court has ample power to allow proper amendments at any time, but it also has as ample power to refuse them at any time. The whole matter of amendments is within the discretion of the court. It more willingly allows amendments in the early stages of the case, especially before issue joined, and is less and less inclined to allow them as the case progresses. Especially is the court disinclined to allow amendments after the pleadings have been completed, the evidence taken out, and the case sent to the law court for final determination. It certainly will not allow them as a matter of course, but only when necessary to save some material right, and then usually only upon terms.

It should be borne in mind that the law court is not the equity court of the first instance. The single justice is that court. He has all the powers of the court in equity to hear cases and to make all decrees, final...