280 Mass. 170 | Mass. | 1932
The first paper printed in this record is entitled “Findings, Rulings and Order on Petition of Israel N. Samuels for Lien for Counsel Fees and Disbursements.” It is signed by a judge of the Superior Court. It therein is stated among other findings that the present proceeding was begun in a district court as an action at law on a note, was removed on motion of the defendant to the Superior Court, that thereafter but before judgment a motion was filed in the case for equitable relief under § 86A, added to G. L. c. 223 by St. 1925, c. 170, § 1, and that thus . Morris Kaplan, husband of the defendant, was brought in as a party. The amount due from the defendant to the plaintiff was fixed at the amount claimed in his declaration, though the case had not gone to judgment because of the equitable proceeding. By report of a master it had been found that there was in the hands of Morris Kaplan $904.08 belonging to the defendant, Annie D. Kaplan, available for satisfaction of the claim of the plaintiff and the claim of his wife, who is said to have instituted a separate action for the collection of a claim due her from the defendant, Annie D. Kaplan, the amount of which;had also been fixed. Thereafter, on September 8, 1931, a decree was entered directing Morris Kaplan to pay to the plaintiff said sum of $904.08 to be used by him in satisfying “the amount hitherto deter
Thereafter, Edith M. Check, wife of the plaintiff, filed a petition to intervene. She also filed a petition to be substituted as plaintiff in place of her husband. Israel N. Samuels filed a petition in the case alleging that he had been attorney for the “plaintiffs,” apparently meaning both the present plaintiff and his wife, and had performed services and made disbursements “in these cases,” and that he is entitled to a lien “for fees and disbursements.” Each of these three petitions was denied and each of those three petitioners has appealed.
The record is in a confused state. This appears to be an action at law in which Max Check alone is plaintiff. Whether the motions of Edith M. Check, or either of them, ought to have been granted to the end that she might become a party, making every assumption in her favor of which the record is susceptible, was at best a matter in the sound discretion of the trial judge. No evidence concerning them is reported. No ruling of law was requested, denied, or made by the trial judge, so far as shown on the record. Manifestly, no question of law is presented on the appeals by Edith M. Check. They must be dismissed.
The motion of Israel N. Samuels was heard on unreported evidence and denied. The facts were found against him. It was especially found that he did not bring himself within the principle of law declared in Delval v. Gagnon, 213 Mass. 203. That principle is that as between the parties a right in the nature of a lien on an identified and particular fund may be created which will in appropriate
The ruling that that petitioner had no lien under G. L. c. 221, § 50, was right. It is expressly found that the case has not gone to judgment. Of course no execution has issued. Therefore there could be no lien. In any event this petitioner, in the absence of a special agreement as to a lien, would be entitled under said § 50 only to the attorney fee allowed by G. L. c. 261, § 23, as amended by St. 1924, c. 108, § 1. Blake v. Corcoran, 211 Mass. 406. Dwyer v. Ells, 208 Mass. 195. Goldman v. Noxon Chemical Products Co. 274 Mass. 526. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 261-262. There is no merit in any complaint against this action of the trial judge.
Mr. Samuels has appealed from the denial of his petition for counsel fees and “from all the orders findings and rulings” in the statement of findings, rulings and order of the trial judge preceding his final conclusion that the “petition is denied.” All this is irregular. Since this appears to be an action at law, the order of the court was final disposition of his petition or motion. It was decisive against his contention, but it was not founded on any “matter of law apparent on the record.” G. L. c. 231, § 96, as amended by St. 1928, c. 306, § 2. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. It depended on facts found by the trial judge. Those findings are no part of the record. Cressey v. Cressey, 213 Mass. 191. Powdrell v. DuBois, 274 Mass. 106. St. 1929, c. 265, § 1. Therefore, treating the appeal as arising in an action at law, there is nothing for the consideration of this court.
If this appeal be treated as arising in a suit in equity, no different conclusion in substance can be reached. The appeal presents no question for our decision. The evidence is not reported. Therefore the findings of the judge must stand as true. The petition ought to have been disposed of
The plaintiff appealed from the decree of September 18, 1931, respecting the petition of Morris Silverman for leave to intervene, and also appealed from the entry of a further decree on October 5, 1931, on that petition. Each is entitled “Interlocutory Decree.” The petition of Morris Silverman for leave to intervene was filed on September 15, 1931. Previously to that date the amount due to the plaintiff from the defendant had been fixed and Morris Kaplan had been brought in as a party by a motion for equitable relief under § 86A, added to G. L. c. 223 by St. 1925, c. 170, § 1. On September 8, 1931, decree had been entered as stated by the judge in his findings “ordering the defendant in equitable process, Morris Kaplan, to pay the plaintiff Max Check said sum of $904.08, to be used by said plaintiff in satisfying the amount hitherto determined to be due him from the principal defendant, Annie Kaplan [Annie D. Kaplan], viz., $535, with interest and costs, and to pay the balance to Edith M. Check in part” satisfaction of her claim against Annie Kaplan [Annie D. Kaplan], as hitherto determined to be $602.55, with interest and costs. Thereafter, on September 15, 1931, the petition of Morris Silver-man, as holder of an unsatisfied execution for $888.10 against Max Check for leave to intervene as claimant of the amount found due from Annie Kaplan [Annie D. Kaplan] to Max Check, was” filed. The decree of October 5, 1931, was to
The effect of these two decrees in combination was to deprive the plaintiff of the fruits of his action at law against the original defendant and of the equitable relief for the collection of his claim established against that defendant sought and obtained by him against Morris Kaplan. He thus would receive nothing from his action at law and equitable proceedings supplementary to it except that the amount awarded him would be applied in part payment of the judgment debt of Silverman against him. That disposition of the case, so far as concerns him, was final. It was adverse to him and he was aggrieved thereby. Although these decrees are termed interlocutory in the record, the one entered on October 5, 1931, in substance and effect is final so far as concerns the plaintiff. The decree will be treated on the footing of its substance and not of its name. Merrimac Chemical Co. v. Moore, 279 Mass. 147, 152. Treating it as a final decree in equity, the plaintiff rightly might appeal. Hutchins v. Nickerson, 212 Mass. 118, 120. Bar-ringer v. Northridge, 266 Mass. 315, 318. Knox v. Springfield, 273 Mass. 109. The interlocutory decree, so far as it affects the substance of the final decree, is also open for consideration by the plaintiff’s appeal from it.
The primary question presented on this branch of the case is whether the petition of Silverman to intervene was rightly allowed. That petition sets out in substance that Silverman in April,-1931, recovered judgment in an amount in excess of $800 against the plaintiff and two others in an action at law brought on their joint and several promissory note, and that that judgment remains unsatisfied. It sets forth also the proceedings in the plaintiff’s present action already narrated; and alleges that the plaintiff and the other judgment debtors either have no property which can be reached to be attached, or have secreted the same,
It is too plain for discussion that this petition to intervene does not come within the scope of § 86A, added to G. L. c. 223 by St. 1925, c. 170, § 1. Relief under that statute can be invoked by the plaintiff alone. The only plaintiff in the case at bar is Max Check. He not only does not ask, but opposes, intervention by Silverman. It has not been contended that, aside from St. 1925, c. 170, there is any statute permitting such intervention.
It remains to consider whether, under general principles, Silverman rightly could have been permitted to intervene. The governing general principle was stated in Rocca v. Thompson, 223 U. S. 317, 330-331, to be that when the term intervention “is used in reference to legal proceedings, it covers the right of one to interpose in, or become a party to, a proceeding already instituted, as a creditor may intervene in a foreclosure suit to enforce a lien upon property or some right in connection therewith; a stockholder may sometimes intervene in a suit brought by a corporation; the Government is sometimes allowed to intervene in suits between private parties to protect a public interest, and whether we look to the English ecclesiastical law, the civil law ... or the common law, the meaning is the same.
The facts set out in the petition to intervene show no interest on the part of Silverman in the subject matter of the litigation involved in the present action and its supplemental equitable proceeding. They show simply that Silverman is a general creditor of the plaintiff arising out of a separate and independent obligation. He was a judgment creditor, but that fact alone gave him no lien or other superior claim to that which his debtor might recover in the present action. He had brought no creditor’s bill. He had acquired no other preferential right over other creditors of the plaintiff. Ample avenues of relief were open to him by creditor’s bill under general equity jurisprudence, Rioux v. Cronin, 222 Mass. 131, 137-139, or by a bill to reach and apply under G. L. c. 214, § 3 (7), Orange Hardware Co. v. Ryan, 272 Mass. 413. If he were permitted to intervene, there would be no reason why his creditor might not intervene to subject his own debt, when established against the debt due the plaintiff, to payment of that creditor’s claim and so on indefinitely; creditors of intervenors in turn might pile litigation upon litigation in one proceeding. There is no ground in law permitting Silverman on the allegations of his petition to interject himself into this action in which he has no legal interest.
The disposition of a petition to intervene commonly but not always rests in sound judicial discretion and is not subject to appeal. New York v. New York Telephone Co. 261 U. S. 312, 316. Western Union Telegraph Co. v. United States & Mexican Trust Co. 137 C. C. A. 113, 119-120.
It follows that there was error in allowing the petition of Silverman to intervene. The decree of October 5, 1931, granting affirmative relief to Silverman on that petition was likewise without justification on this record.
The interlocutory decree of September 18, 1931, allowing the petition to intervene, and the decree of October 5, 1931, affording affirmative relief, must be reversed and a decree is to be entered denying the petition to intervene, with costs. The other appeals are dismissed.
Ordered accordingly.