Ewing v. King, 169 Mass. 97

Ewing v. King

169 Mass. 97 | Mass. | 1897

Knowlton, J.

This bill is brought by the receiver of a Tennessee corporation. It fails to show whether the nature of the receivership is such as to give him a title to the notes- and account on which his claim is founded, and to enable him to sue upon them in his own name. See Amy v. Manning, 149 Mass. 487; Wilson v. Welch, 157 Mass. 77; Buswell v. Order of the Iron Hall, 161 Mass. 224; Fort Payne Coal & Iron Co. v. Webster, 163 Mass. 134; Booth v. Clark, 17 How. 322; Yeager v. Wallace, 44 Penn. St. 294. From the statement that the notes and account were “ among the assets which came into the hands and ownership of the plaintiff as such receiver,” and the further statement that he prevailed at all stages of the suit in the United States Circuit Court, in the United States Circuit Court of Appeals, and in the Supreme Court of the United States, it may fairly be inferred that as receiver he became assignee of the assets. But the question in regard to his right to sue was not raised upon the demurrer, nor presented in argument. It is therefore unnecessary to consider it further.

Both parties contend that the judgment obtained in the *101United States Circuit Court in Tennessee was either voidable or void. If the judgment is treated as a nullity, the bill sets forth with sufficient fulness a claim upon the notes. The judgment is not set out particularly, and it does not appear whether or not it was merely an affirmation of a decision rendered before the decease of the defendant’s intestate. See Reid v. Holmes, 127 Mass. 326, and cases cited. If it was entered under such circumstances and in such form as to be valid, or merely voidable and not void, there is a sufficient statement of it in the bill to enable the plaintiff to proceed, inasmuch as no objection is taken to the form of the allegation. In the present aspect of the case it is not important to determine whether it is void, or merely voidable, since the bill tells in general language the whole story of the plaintiff’s claim, and asks for payment of it, without reference to the question whether it is legally represented by the notes and account, or by a judgment in which they are merged. Under Pub. Sts. c. 186, § 10, the remedy is in equity, as well on a claim under such a judgment as on a claim under the notes and account.

We come now to the question whether the plaintiff can have relief under Pub. Sts. c. 136, § 10, which is as follows : “ If the Supreme Judicial Court upon a bill in equity filed by a creditor whose claim has not been prosecuted within the time limited by the preceding section, is of opinion that justice and equity require it, and that such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited, it may give him judgment for the amount of his claim against the estate of the deceased person ; but such judgment shall not affect any payment or distribution made before the filing of such bill.” Upon the facts stated in the bill there is 'no doubt that the plaintiff would have been entitled to recover at common law if suit had been brought upon his claim within two years after the appointment of the defendant as administratrix. The suit is founded upon contracts which it was the legal duty of the defendant’s intestate to perform. If the contracts were advantageous to the corporation which the plaintiff represents, it was entitled to the benefit of them, and nothing appears that makes them less enforceable in equity than at law. The simple question is whether the statute above quoted was *102intended to relieve a plaintiff who has lost his right to proceed at common law under such circumstances as appear in this case.

The statute has repeatedly been considered by this court. Waltham Bank v. Wright, 8 Allen, 121. Jenney v. Wilcox, 9 Allen, 245. Bradford v. Forbes, 9 Allen, 365. Prentice v. Dehon, 10 Allen, 353. Wells v. Child, 12 Allen, 333. Richards v. Child, 98 Mass. 284. Ball v. Wyeth, 99 Mass. 338. Allen v. Ashley School Fund, 102 Mass. 262. Sykes v. Meacham, 103 Mass. 285. Spelman v. Talbot, 123 Mass. 489. Brooks v. Rayner, 127 Mass. 268. Morey v. American Loan & Trust Co. 149 Mass. 253. Knight v. Cunningham, 160 Mass. 580. Without reviewing these cases, we are of opinion that there is no adjudication in any of them that would require a decision in favor of the defendant if applied to the facts of the present case. The statute is remedial, and it expressly provides that a judgment under it in favor of a plaintiff shall not affect any payment or distribution from the estate of the deceased person made before the filing of the bill. Its operation is not limited to cases where the failure to sue seasonably was due to such fraud, accident, or mistake as would be a ground for equitable relief if there were no statute. In each of the two cases last cited, relief was given under it when the circumstances were certainly not more favorable to the plaintiff than they are in the present case.

If the averments of the bill are true, the present plaintiff was not a creditor who waited quietly and carelessly for more than two years after the death of his debtor in another State when all the time he had no other plan or purpose for the recovery of his debt than to seek the debtor at his domicil. By the service of process upon the debtor he had brought him within the jurisdiction of the Federal Court in Tennessee, and was pursuing him there. The debtor had appeared in court by counsel, and had made an answer which he had sworn to in person. The plaintiff prevailed before the Circuit Court, the Circuit Court of Appeals, and finally before the Supreme Court of the United States. No suggestion had come from any source that the defence, which was all the time being conducted in the name of the defendant’s intestate and others, was not in fact conducted by'him as well as by his co-defendants. The defendant, at the time of her appointment as administratrix, was cognizant of the proceedings *103in court, and from that time until the entry of the judgment employed counsel to represent the interests of the estate of her intestate in the litigation. It seems clear that the plaintiff was not guilty of culpable neglect in assuming that his debtor was living so long as the defence was conducted and appeals were taken in his name. The proceedings which were being conducted with the defendant’s knowledge and consent, apparently in behalf of the defendant’s intestate, were almost equivalent to repeated assertions by the intestate or his legal representatives that he was still living. The plaintiff supposed that he was alive until after the decision of the Supreme Court of the United States, more than two years after the appointment of the defendant as administratrix.

In our opinion the statute was enacted to furnish a remedy in cases like this, and we discover no injustice to anybody in allowing the claim to be prosecuted as it would have been if the plaintiff had learned of the death of his debtor, and had brought suit against the administratrix within two years after her appointment. Demurrer overruled.