Terry v. Sisson

• Citation: 125 Mass. 560
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 07 November 1878
• Parties: James Terry v. Sarah F. Sisson & trustee

125 Mass. 560

James Terry v. Sarah F. Sisson & trustee

Supreme Court of Massachusetts

November 7, 1878

Bristol. Trustee process. The writ was dated November 29 1876, and, as originally sued out, returnable to the Second District Court of Bristol on the second Monday of December 1876, was against Sarah Sisson as defendant, and the Fall River Savings Bank as trustee. The officer's return showed that service thereof was made on the trustee on December 1, and on the defendant on December 5, 1876.

On January 19, 1877, upon the affidavit of the officer that the service last mentioned was made on Sarah F. Sisson, the District Court allowed the plaintiff to amend his writ, by making the defendant's name Sarah F. Sisson.

The trustee afterwards filed an answer, stating that, at the time of the service upon it, there was not any person of the name of Sarah Sisson, who was a depositor in the bank, or to whom the bank was indebted. The trustee, in answer to interrogatories filed by the plaintiff, further answered that it appeared by the books of the bank that on December 1 1876, a person by the name of Sarah F. Sisson was a depositor in the bank, having a credit of $ 53.19, and that that account was withdrawn by her from the bank on December 5, and that the bank had not at any time taken from her, or from any other person, any bond of indemnity or promise of repayment, in case the bank should be held liable in this or any other action.

The District Court gave judgment for the plaintiff against the defendant, and discharged the trustee; the plaintiff appealed to the Superior Court, which affirmed the judgment; and the plaintiff then appealed to this court.

Judgment affirmed.

J. F. Jackson, for the plaintiff. The amendment in this action, changing the name of the defendant from Sarah Sisson to Sarah F. Sisson, was an amendment of form merely, and did not affect the attachment of the funds in the hands of the trustee, since it introduced no new party or cause of action. Wight v. Hale, 2 Cush. 486. The amendment in this action is at least binding upon all the parties thereto; the trustee is one of the parties. No subsequent attaching creditor or other person has acquired any title or right to the funds in the hands of the trustee since the attachment was made. A trustee cannot affect the question of his being charged or discharged, by paying over the funds in his hands, without awaiting the final action of the court. Vermilyea v. Roberts, 103 Mass. 410. West v. Platt, 116 Mass. 308. Langmaid v. Puffer, 7 Gray 378.

E. Williams, for the trustee.

Gray, C. J. Endicott & Lord, JJ., absent.

OPINION

Gray, C. J.

It is well settled in this Commonwealth that the middle name or initial is an essential part of the name. Sarah Sisson and Sarah F. Sisson are therefore different names. Commonwealth v. Hall, 3 Pick. 262. Commonwealth v. Shearman, 11 Cush. 546. Commonwealth v. McAvoy, 16 Gray 235. The misnomer could not indeed be taken advantage of by the principal defendant, who had been duly served and had suffered a default; and it might, as between her and the plaintiff, be amended, at the discretion of the court. Trull v. Howland, 10 Cush. 109. Crafts v. Sikes, 4 Gray 194. Langmaid v. Puffer, 7 Gray 378. But such an amendment cannot affect intervening rights of third persons. The only writ served upon the trustee was against Sarah Sisson. The trustee, having no funds belonging...