243 Mass. 424 | Mass. | 1923
This is a petition for a writ of mandamus to order and direct the respondent, in his capacity as clerk of courts for the county of Hampden, to receive, an entry fee and to enter on the docket of the Supreme Judicial Court the appeal of the petitioner from an order of the Superior Court for the county of Hampden denying the petition of the Cambridge Savings Bank that a decree of the said Superior Court appointing a receiver of the Hampden Railroad Corporation be vacated. The petition was heard by a single justice of this court upon the substitute petition and answer thereto. He ordered the petition “dismissed as a matter of law,” and reported the case for determination by the full court.
The undisputed and admitted facts, shown by the petition and answer, succinctly stated are that on February 21, 1921, the Cambridge Savings Bank, as a creditor, purchased a writ in the Superior Court for the county of Middlesex against the Hampden Railroad Corporation and under that writ caused the property of the defendant corporation to be attached in the sum of $30,000. It sufficiently appears, although not in terms stated in the report, that the writ was entered and that the action is now pending in the Middlesex Superior Court. It further appears that divers other corporations had brought suit to enforce collection of certain overdue notes; that the railroad is not in operation; that all its property is within the counties of Hampden and Hampshire; that its outstanding obligation in the form of overdue notes is not less than $1,500,000; and that it has substantially no assets other than its real estate, roadbed, track, stations and franchises. On March 16, 1921, the Hampden National Bank, in its own behalf and in behalf of all other creditors of the Hampden Railroad Corporation,
The Cambridge Savings Bank did not participate in the appointment of the receiver and therefore is not estopped to repudiate the action of the Hampden National Bank, in its own behalf and in behalf of all other creditors of the Hampden Railroad Corporation, which resulted in the appointment of the receiver with the assent of the defendant debtor corporation. It is obvious the Cambridge Savings Bank and other creditors having attachments which were dissolved upon the appointment of a receiver were interested parties and had the right to intervene and oppose the appointment of the receiver, when made or thereafter on petition to vacate the decree, upon the ground that on the facts as disclosed in the record the court was without jurisdiction to appoint the receiver. See G. L. c. 223, § 130. Davis v. Mazzuchelli, 238 Mass. 550. The decree denying the petition to vacate the appointment of the receiver on the ground the court was without jurisdiction to make the appointment on the facts, was in its nature a final decree which was appealable to this court. Hutchins v. Nickerson, 212 Mass. 118. Absence of authority to make the appointment necessarily would result in the reversal of the decree of appointment and in the dismissal of the bill of complaint, which had as its only object the appointment of a receiver.
The order of the single justice dismissing the petition for a mandamus was right as matter of law. Mandamus, will not issue where there is a speedy, plain and adequate remedy in the ordering of the administration of the law. Taylor v. Thompson, 232 Mass. 269, 271. The clerk of courts is a ministerial officer of the courts and is subject to the direction of the courts in the performance of his duties. The duty of the clerk in the first instance manifestly is to determine whether papers presented for entry are proper to be entered under the statutes and rules of the court. A person
Petition denied.