William J. McCarthy Co. v. Rendle

• Decision Date: 10 January 1916
• Citation: William J. McCarthy Co. v. Rendle, 222 Mass. 405, 111 N.E. 39 (Mass. 1916)
• Parties: WILLIAM J. McCARTHY CO. v. RENDLE et al.
• Court: Supreme Judicial Court of Massachusetts

222 Mass. 405

111 N.E. 39

WILLIAM J. McCARTHY CO.

v.RENDLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 10, 1916.

Appeal from Superior Court, Suffolk County.

Bill in equity by the William J. McCarthy Company against James B. Rendle and others to reach and apply money alleged to be due to defendants from the commonwealth in payment of a debt of defendants to plaintiff. Decree sustaining demurrer and dismissing the bill, and plaintiff appeals. Affirmed.

John E. Crowley, of Boston, for appellant.

Fred L. Norton, of Boston, for appellees.

DE COURCY, J.

[1] The plaintiff's bill in euqity is brought under R. L. c. 159, § 3, cl. 7, to reach and apply a sum of money alleged to be due to the defendants from the commonwealth, in payment of a debt which the defendants owe to the plaintiff. The fundamental trouble is that the commonwealth, in whose possession the property is alleged to be, and which is interested in the issues of its indebtedness to the defendants and the assignability thereof by the defendants, is not made a party. The fact that it cannot be made a party and inpleaded in its own courts except by its consent, clearly manifested by act of the Legislature (Troy & Greenfield Railroad v. Com., 127 Mass. 43), does not, of course, give the court jurisdiction to adjudicate its rights without being heard.

[2] The contention of the plaintiff is that by reason of the commonwealth's immunity from suit, the money due to the defendants is property ‘which cannot be reached to be attached or taken on execution in an action at law,’ and that therefore the court has jurisdiction under the statute. Even if this construction of the statute were correct, that would not obviate the necessity of joining as a party one who is vitally interested in the subject matter of the suit. But it long has been settled that by the clause quoted is meant ‘property which is of such a nature that it cannot be attached or taken on execution in a suit at law.’ Venable v. Rickenberg, 152 Mass. 64, 66, 24 N. E. 1083, 1084 (8 L. R. A. 623). The claim which the defendant holds against the commonwealth plainly is the kind of property which can be attached by trustee process in an action at law. The reason why trustee process will not lie in favor of the plaintiff is that the commonwealth cannot be summoned as trustee into its own courts. In other words, the plaintiff cannot reach this alleged property of the defendants either by legal or equitable trustee process without the...