Zani v. Phandor Co.

• Decision Date: 05 December 1932
• Citation: 183 N.E. 500,281 Mass. 139
• Parties: ZANI v. PHANDOR CO. et al. (COBB, Intervener).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 139

183 N.E. 500

ZANI

v.PHANDOR CO. et al. (COBB, Intervener).

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 5, 1932.

Report from Municiapl Court of Boston, Appellate Division; F. D. Putnam, Special Judge.

Action by John Zani against the Phandor Company, wherein the Roman Catholic Archbishop of Boston was made trustee in trustee process, and in which Edgar H. Cobb, as principal defendant's trustee in bankruptcy, intervened. Judgment was rendered against defendant and intervener. On report.

Affirmed.

H. M. Dowd, of Boston, for plaintiff.

M. T. Hall, of Boston, for claimant Cobb.

RUGG, C. J.

The defendant in this action of contract was defaulted and damages have been assessed against it in a substantial sum. The controversy arises between the plaintiff and Edgar H. Cobb, the trustee in bankruptcy of the defendant, as to which of them is entitled to money in the hands of the alleged trustee admittedly due originally to the principal defendant. The facts pertinent to that controversy are these: The plaintiff named the Roman Catholic Archbishop of Boston, a corporation sole, as trustee of the principal defendant in his writ, which was dated May 22, 1929, and was returnable on June 1, 1929. The return of service of the writ on the alleged trustee, under date of May 24, 1929, as amended, was in these words so far as here material: ‘By virtue of this writ I * * * summoned the within named trustee Roman Catholic Archbishop of Boston to appear and show cause at Court as within directed by delivering to H. V. Cunningham, Esq., its Agent, an attested copy of this writ.’ The defendant appeared and answered in July, 1929, although by the docket entries interrogatories to the trustee were filed on November 2, 1929, there is nothing to show that trustee appeared in court until December 5, 1929, when it filed an answer. Later, in answers to interrogatories, it stated the amount in its hands due to the principal defendant, and on January 31, 1930, was permitted to amend its answer by setting out demand upon it for the entire amount by the trustee in bankruptcy of the defendant, that it had no interest in the matter and was merely a stakeholder, and praying that notice issue to the trustee in bankruptcy of the defendant to appear in court and establish his claim. Such notice issued and the trustee in bankruptcy on February 28, 1930, appeared and filed a claim setting out that the defendant was adjudicated a bankrupt on October 29, 1929, that he was appointed trustee of the bankrupt on December[281 Mass. 143]28, 1929, and that he was entitled to all moneys due to the defendant from the alleged trustee for the reason that service of the trustee writ had not been made upon the alleged trustee as required by law and that hence there had been no valid attachment of the funds in its hands. The trial judge found as a fact that Mr. Cunningham was on May 24, 1929, an agent of the alleged trustee for the purpose of being served with process in this case. This finding was in conformity to an answer filed on January 16, 1930, by the alleged trustee to an interrogatory filed by the plaintiff. The trial judge added: ‘I do not find that Mr. Cunningham was an ‘agent * * * in charge of’ the alleged trustee's ‘business.”

At the trial the claimant presented two requests for rulings to the effect (1) that service of the writ upon the trustee could not be made upon its agent and (2) that service of the writ upon the trustee by the sheriff by leaving a copy with a person other than the corporation sole and by making return of having served upon its agent creates no lien upon the credits in the hands of the corporation sole which bars the claimant as the trustee in bankruptcy of the principal defendant from recovering such credits. The trial judge granted these requests but ruled that, both the defendant and the alleged trustee having appeared generally and filed answers and neither having filed a plea in abatement or motion to dismiss, the claimant cannot now attack the validity of the service of the writ on the alleged trustee.

[1] A question of practice lies at the threshold. The claimant seasonably filed request for a report on the ground that he ‘duly filed certain requests for rulings * * * which were denied and * * * being aggrieved thereby * * * hereby requests a report.’ The trial judge made report as requested, setting out the facts and procedure above narrated, provided he had power so to do. The request for report was informal and incomplete in that it did not accurately state the action of the trial judge upon the requests and omitted reference to the ruling of the trial judge above specified, which resulted in charging the trustee on its answer and in refusing the relief sought by the claimant notwithstanding the granting of his requests for rulings. If report of that ruling had been requested, no difficulty would arise. Requests for reports ought to be clear and explicit in the interests both of the litigants and of the commonwealth. The decision of the trial judge, however, was in substance that he regarded the requested rulings as immaterial and inapplicable in law, not because of facts found but because of his ruling of law as to the consequences of appearance and answer by both the defendant and the alleged trustee without raising any objection. It was in truth a refusal to give operative effect to the requested rulings for that reason. If that reason is erroneous in law, there is also error in denying operative effect to the requested rulings. Although the question is close on this point, we are of opinion that the trial judge had power to report and that the real questions of law in the case are presented on the report.

The governing statutes as to service of a writ upon one named therein as trustee are G. L. (Ter. Ed.) c. 246, § 5: ‘Trustee writs shall be served by copy on each trustee * * *’ and in other respects as provided in G. L. (Ter. Ed.) c. 223, § 37. The latter section provides: ‘* * * In an action against a domestic corporation * * * [such as the alleged trustee] service shall be made upon the president, treasurer, clerk, cashier, secretary, agent or other officer in charge of its business, or, if no such officer is found within the county, upon any member of the corporation.’ The trial judge rightly ruled that the words ‘In charge of its business' modify the word ‘agent’ as well as the words ‘other officer.’

The question arises whether the amended return of service made by the sheriff was in conformity to the governing statutes and created a lien upon the credit in the hands of the alleged trustee. The rulings presented by the claimant and granted by the trial judge, to the effect that such service was not sufficient and created no lien, were right.

[5] The Roman Catholic Archibishop of the Archdiocese of Boston and his successors in office were created a corporation sole under the name of the Roman Catholic Archibishop of Boston with succession and enumerated powers subject to all general laws by St. 1897, c. 506. Wherefore it is subject to trustee process as are other corporations. The named trustee, although a corporation sole and not a corporation aggregate, is a legal entity incapable of corporate action except through an agent or agents. It is plain that the named trustee is a corporation of a different nature from those incorporated under G. L. (Ter. Ed.) c. 67, § 44. Although doubtless possessing other important functions, there is no incongruity in classing this corporation sole, so far as concerns transactions like that here involved, as an ordinary commercial corporation. Of necessity it must engage in a large amount of pure business in contracting with reference to churches and other buildings to be erected, reconstructed and repaired, holding property, investing charitable funds, and other manifold similar activities. It falls within the category of corporations upon which service of process may be made under the statutes upon an agent in charge of its business.

[7] It is to be observed that the sheriff did not set forth in his return in substance that he had made service of the writ upon the trustee by delivering copy to Mr. Cunningham, its agent for the purpose of receiving service of process. It is not necessary to consider the effect of such a return of service. The sheriff simply stated in his return as amended that he had delivered the copy to Mr. Cunningham as agent of the trustee, without adding that he was agent in charge of its business and without otherwise describing the terms and scope of the agency. Such a return is insufficient and not in conformity to the requirements of the statute. The return must show service upon an agent in charge of the business of the corporation, or some other authorized officer or representative. A return showing service upon an agent is not a good service. An officer may be permitted to amend his return, but deficiency in the return of service of a writ cannot commonly be supplied through evidence. Facts stated in the return of the officer may be assailed in appropriate instances under recognized procedure and evidence introduced by all parties on issues thus raised, but new facts cannot ordinarily be proved by extrinsic evidence to perfect an insufficient return; that must be done through an amendment by the officer to his return. United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 338-339, 132 N. E. 56, and cases cited; Browning-Drake Corp. v. AmerTran Sales Co., 274 Mass. 545, 175 N. E. 45;Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188, 194, 182 N. E. 361. Compare Harriman v. Reading & Lowell Street Railway, 173 Mass. 28, 38, 53 N. E. 156.

There is an exception to the rule as to the finality of the officer's return where the parties submit the case on the facts as they actually exist irrespective of the return. Boston v. Tileston, 11 Mass. 468;Wolcott v. Ely, 2 Allen, 338;Commonwealth v. Greene, 13 Allen, 251;...