Wilde v. Mahaney

• Decision Date: 25 May 1903
• Citation: Wilde v. Mahaney, 183 Mass. 455, 67 N.E. 337 (Mass. 1903)
• Parties: WILDE v. MAHANEY et al.
• Court: Supreme Judicial Court of Massachusetts

183 Mass. 455

67 N.E. 337

WILDE v. MAHANEY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1903

COUNSEL

William R. Bigelow, for plaintiff.

John J Scott, pro se.

OPINION

LORING J.

This case was begun in the First District court of Southern Middlesex by a writ of trustee process. The trustee filed an answer setting forth that before the service of the trustee writ the principal defendant recovered a verdict against it in the sum of $161, and it recovered a verdict against the principal defendant of $24, and that judgments had not been rendered on either verdict. The claimant appeared in that court, and filed a claim, in which he set forth, in effect that the verdict against the trustee was made in an action to enforce a cause of action not the subject of trustee process, and that by an assignment made six days after the trustee writ was served an assignment was made to him of the chose in action in which the verdict was rendered. The district court made an order discharging the trustee, and the plaintiff appealed to the superior court. In the superior court the records of the two actions in which the verdicts were rendered, referred to in the trustee's answers, were filed by agreement of the plaintiff and trustee, and made part of the record.

The claimant asked the presiding judge to rule that '(1) upon all the evidence in this case trustee process does not lie; (2) upon all the evidence in this case the trustee should be discharged; (3) upon all the evidence in this case there should be a finding in favor of the claimant, and for his costs.' The court refused these rulings, and ordered the trustee to be charged. The case is here on exceptions taken by the claimant to the refusal to give the three rulings requested.

The plaintiff's first contention is that whether the ruling made below is right or wrong is of no consequence, for that is a question on which the claimant has no right to be heard. In support of that contention he relies on Clark v. Gardner, 123 Mass. 358, approved in the subsequent cases of Moors v. Goddard, 147 Mass. 287, 290, 17 N.E. 532, and Butler v. Butler, 162 Mass. 524, 39 N. E 182. On looking at the original papers in Clark v. Gardner, it appears that the case which it was held in this court the claimant had no right to go into was this: The claimant was the assignee of future earnings of the principal defendant under an assignment duly recorded. He was allowed by the superior court to show that the sum due when the trustee writ was served on the trustee, if anything was then due, was due under an entire contract, which had not been performed, and was therefore not a sum due absolutely and without any contingency within what is now Rev. Laws, c. 189, § 23. It was held that he had no right to do this, not on the ground that proof of that fact contradicted the answer of the trustee--there was no such objection in that action--but on the ground that for the claimant to prove that there was no fund held by the trustee writ was to prove himself out of court. This conclusion was reached as matter of construction of the statute giving the claimant a right to intervene now (Rev. Laws, c. 189, § 32). That action provides that the claimant shall be admitted a party for the purpose of determining his title to the debt due the principal defendant. It had been previously settled that if there is no debt held by service of the trustee writ there is no standing for the claimant ( Peck v. Stratton, 118 Mass. 406); and it was held in Clark v. Gardner that the claimant was limited to asserting a title to the fund in court, and could not be heard to protect his interest in a fund, to which but for the attachment he had a good title by assignment, by showing that it was not the subject of trustee process, and for that reason the court ought not to direct the trustee to pay it to the plaintiff.

In Webster v. Lowell, 2 Allen, 123, it was held that a principal defendant is bound by a judgment charging a trustee by reason of his having a fund due that defendant not arising out of a contract, and therefore not properly the subject of trustee process; and in that case not only is it laid down that the principal defendant has a right to litigate that and any other question in which he is interested, but this court went one step farther, and held that, if the principal defendant wished to raise the objection that the fund was not the subject of trustee process, he should have been admitted as a claimant of the fund, and raised it in that capacity. The two cases are in conflict, and, in our opinion, the rule of practice laid down in Webster v. Lowell is the true one.

A claimant who has appeared in the trustee process must have the right to raise this question in some way, unless he is to have the right to sue the trustee under his assignment in spite of the judgment charging the trustee under the trustee writ. It is true that in Rev. Laws, c. 189, § 43, providing that the judgment against the trustee shall discharge him from all demands by the defendant, persons claiming by assignment under the defendant are not expressly mentioned, and it is also true that the rights of the assignee could be worked out by alloweing him to have the right to make the defense under consideration in the name of the trustee. But we are of opinion that Rev. Laws, c. 189, § 43, is to be construed as if a person claiming under the principal defendant by assignment from him were expressly mentioned in that act, and that such a person who has appeared in the trustee process, or who has had notice to appear, is bound by a judgment charging the trustee. We think that the purpose of Rev. Laws, c. 189, § 32, allowing a claimant to intervene in the trustee action, is that there may be a final determination of all questions in which the claimant is interested, so that a judgment charging the trustee shall acquit the trustee of all demands by the defendant and those claiming under him who have had notice and an opportunity to be heard, as well as from all demands by the principal defendant himself. We are therefore of opinion that the claimant had the right to go into the question whether the fund due the principal defendant was one which could be reached by trustee process or not.

The plaintiff's second contention is that the ruling made below was right, and that a claim for unliquidated damages arising out of the breach of a contract is the subject of trustee process. There is no case in this commonwealth on the point. But it has been decided in other jurisdictions that such a claim cannot be reached in foreign attachment. Hugg & Bell v. Booth, 24 N.C. 282; Eastman v. Thayer, 60 N.H. 575; Bucklin v. Powell, 60 N.H. 119, and cases there cited; Capes v. Burgess, 135 Ill. 61, 25 N.E. 1000; Selheimer v. Elder, 98 Pa. 154, 158, and cases cited. And the text-books lay down the same rule. 2 Shinn on Attachment & Garnishment, § 483; Drake on Attachment, § 548; 2 Wade on Attachment, § 447.

The reasons given in the opinion in Hugg & Bell v Booth, 24 N.C. 282, decided 60 years ago, are conclusive of the matter. Chief Justice Ruffin in that opinion points out not only that the word 'credits' is the correlative of 'debts,' and that the use of that word in describing what choses in action can be trusteed means that liquidated demands alone can be reached, but he also points out that the...