Wright v. Graustein

• Decision Date: 02 January 1918
• Citation: 118 N.E. 227,229 Mass. 68
• Parties: WRIGHT v. GRAUSTEIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 68

118 N.E. 227

WRIGHT

v.GRAUSTEIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1918.

Appeal from Municipal Court of Boston, Appellate Division.

Action by William H. Wright against Ida S. Graustein, defendant, and the Charlestown Trust Company and Westminster National Bank, trustees. The municipal court sustained defendant's answer in abatement, and reported its rulings to the appellate division, which ordered the answer in abatement vacated and overruled, and defendant appeals. Order affirmed.

W. A. Graustein, of Cambridge, for appellant.

Frank W. Campbell, of Boston, for appellee.

RUGG, C. J.

This is an action of contract commenced by trustee process in the municipal court of the city of Boston. Neither the plaintiff nor the principal defendant are alleged in the writ to reside within the jurisdiction of the court, but the Charlestown Trust Company, one of the corporations named as trustee, is alleged to have its usual place of business within the jurisdiction of that court. The principal defendant filed an answer in abatement, averring in substance that she has no money on deposit with the Charlestown Trust Company and has never had any business transactions with it, and calling attention to the fact that on the allegations of the writ the plaintiff was a resident of Westminster in the state of Vermont, and the defendant, of Cambridge in this commonwealth, and praying that the writ abate. This was described rightly as an answer in abatement. Young v. Providence & Stonington S. S. Co., 150 Mass. 550, 554, 23 N. E. 579.

The plaintiff filed a motion to overrule ‘the defendant's answer in abatement.’ This was irregular. All that was necessary was to set the case down for hearing on the answer in abatement. Comstock v. Livingston, 210 Mass. 581, 97 N. E. 106.

On the hearing upon the matter in abatement ‘no witnesses were sworn, and no evidence was offered in behalf of the defendant. The defendant appeared by her husband who offered to prove to the Court that the defendant did not then have, and never had, any money deposited in the Charlestown Trust Company, nor had she ever had any business transactions with the Charlestown Trust Company. The defendant made no further offer of proof.’ Thereupon the court sustained the answer in abatement. This was error. The plaintiff does not appear to have consented to this course of procedure, nor to have agreed that the facts stated in the offer of proof were true or might be regarded by the court as the equivalent of evidence. The plaintiff had a right to have the witnesses called and to cross-examine them if he desired. There is nothing to show that he waived that right. This is quite different from an offer of what a party expects to prove when on objection his questions to a witness are excluded. Cook v. Enterprise Trans. Co., 197 Mass. 7, 10, 83 N. E. 325;Hallwood Cash Register Co. v. Prouty, 196 Mass. 313-315, 82 N. E. 6.

If, however, the facts stated in the offer be taken as true, then the order was wrong as matter of law. There is nothing in the record to show that the plaintiff inserted the name of the Charlestown Trust Company as trustee in bad faith having no reason to believe that it had in its hands goods, effects or credits of the principal defendant, or that the insertion of the name of that trustee was simply colorable for the purpose of appearing on the face of the writ to confer jurisdiction upon the municipal court of the city of Boston. Doubtless, if it were found as a fact that the joinder of the trustee was fraudulent or colorable and simply for the purpose of obtaining jurisdiction, the defendant upon seasonably raising the point would be protected. Wecker v. Nat. Enameling & Stamping Co., 204 U. S. 176, ...