Choquette v. Ford

178 Mass. 6 | Mass. | 1901

Morton, J.

The question in this case relates to the trustee. It was charged in the Superior Court on its answer and judgment was entered against the defendants and it. The defendants appealed but the trustee did not. The only question which has been argued is whether the trustee should have been charged. We assume without deciding that the defendants can raise that question on their appeal. It is agreed and the declaration apparently shows that the plaintiff’s claim is not for necessaries.

It appeared that previous to the writ in suit another writ had been sued out by the plaintiff in which the defendant Llewellyn G. Ford was the sole defendant. This writ was dated April 21 and was returnable May 20 before the Police Court of Holyoke. It was served on the trustee April 21, at which time there was due said Ford from the trustee as wages $13.35. It was served again on the trustee May 5, on which date there was due Ford from the trustee the additional sum of $12.60 for wages. Nothing was paid Ford by the trustee as an exemption or otherwise after the first service. This writ was never entered. On May 12 the writ in the present action was brought against the aforesaid Llewellyn G. Ford and one William Ford, described as late copartners under the style of Ford Brothers. This writ was served on the trustee on May 12 and was duly entered and is the one to which the trustee appeared and answered. There is nothing to show, except as it may be inferred from the facts above stated, that the second writ was brought and the first abandoned otherwise than in good faith. We cannot infer abuse of process from the mere fact that the first writ was not entered. There may have been good reasons for not entering it and for bringing the second writ in the form in which it was brought.

The defendants contend that the wages were exempt from attachment on the writ in the present action. No doubt the trustee could have paid to Ford what was due him at each service on it of the first writ and would have been protected in so doing. Pub. Sts. c. 183, § 30. Hall v. Hartwell, 142 Mass. 447. Sullivan v. Hadley Co. 160 Mass. 32.

No doubt also if the first writ had been entered Ford would have been entitled to the benefit of the exemption at each service. Hall v. Hartwell and Sullivan v. Hadley Co., ubi supra. But this is not one of those cases.

We cannot doubt that if some other person than the plaintiff had brought the present writ Ford would not have been entitled to exemption on account of the two services on the first writ. And where there is nothing to show that the abandonment of the first writ and the bringing of the second writ in which an additional party is included as defendant was not in good faith, we do not see why the plaintiff should be in any worse position than a third party would be. In the case of McNally v. Wilkinson, 20 R. I. 315, relied on by the defendants, the court evidently was satisfied that there had been an abuse of process. The second writ in that case was brought by the same plaintiff as in the first writ and against the same defendant and trustee. In this case there was joined as defendant in the second writ another party with the defendant in the first writ, and we cannot say, as already observed, that there may not have been good reasons for the course that was taken.

Judgment affirmed.