290 Mass. 182 | Mass. | 1935
This is a writ of scire facias brought against the defendant, which was adjudged a trustee in an action begun by the plaintiff by trustee process against one Blanche Kuzmuk as principal defendant. It is brought pursuant to G. L. (Ter. Ed.) c. 246, § 45, to secure judgment and execution against the defendant, which has not paid upon demand the execution issued in the original action. Such a scire facias is not an independent civil action but a judicial writ to enforce the judgment previously rendered. The original action and the writ of scire facias "are part of one continued and connected course of proceedings.” Universal Optical Corp. v. Globe Optical Co. 228 Mass. 84, 85. Barringer v. Northridge, 266 Mass. 315, 318.
The decision by the Appellate Division on the merits of the scire facias was adverse to the plaintiff, who claimed an appeal. The defendant filed a motion to dismiss that appeal for want of prosecution in that the plaintiff did not make deposit to pay the estimated expense of the preparation and transmission of necessary papers for this court "within twenty days after the date” of the notice of such
The record with reference to the merits of the case is meager. It is stated that the trustee filed an answer in the original casé. Its contents are not recited. Before the trial on the scire facias the plaintiff moved that “the evidence together with the findings in the matter of charging the trustee in the original action ... be brought forward and adopted as the evidence and findings in the present case.” That motion was allowed without previous notice to the defendant. Thus it appears that, at the hearing on the motion to charge the trustee, an agreed statement of . facts was before the court. Summarily stated, that agreed statement was to the effect that the trustee (the present defendant) issued a policy of fire insurance on certain real estate insuring Blanche Kuzmuk, the principal defendant, as owner, payable in case of loss to Needham Co-operative Bank, first mortgagee, as its interest might appear. The insured property was injured by fire and the amount of loss was agreed by the principal defendant and the insurer to be $868.82 on July 10, 1931. The Needham Co-operative Bank, on October 19, 1931, unbeknown to the plaintiff, brought an action against the insurer to recover on the policy. In that action judgment was rendered in favor of the Needham Co-operative Bank for $868.82, interest and
When the trustee failed to pay the execution, this scire facias was brought. The present defendant in its answer alleged that it had no goods, effects or credits of the original principal defendant at the time of the action or subsequently. At the trial on the scire facias the execution was admitted in evidence showing due and sufficient demand on the trustee. The general agent of the defendant testified that the policy of insurance was issued by the defendant, that the insured property was damaged by fire, and that the amount of damage due under the policy had been adjusted but not paid at the time of the service of the trustee writ on the defendant as trustee, that action was brought against it by the Needham Co-operative Bank and judgment against it had been paid by it to the bank, and that the present plaintiff was not a party to that action.
The plaintiff presented these requests for rulings, which were denied: “1. On all the evidence, judgment should be entered for the plaintiff in the sum of $868.82. 2. The findings of the court in the original action are res adjudicata in the present action. ... 4. The finding of the court in the former action based upon the agreed statement of fact is an adjudication of the liability of the trustee.” The finding was for the defendant. A report was made to the Appellate Division.
The first request for ruling has not been argued and under the familiar rule is treated as waived.
The second and fourth requests in substance ask for a
The proceedings in charging the trustee in the original action were very irregular. It is stated in the opinion of the Appellate Division that from an examination of the record in the original case the plaintiff interrogated the trustee and sworn answers were filed. As there described, there is no binding admission of liability on the part of the trustee. There is nothing in the record before us on the point. So far as disclosed by the printed record before us, there was no "examination of the trustee under oath. An agreed statement of facts was filed. The principal defendant, whose property was at stake, does not appear to have been consulted. Attachment by trustee process is established and regulated by statute for holding property of another against his will to answer for a debt due the plaintiff. The method prescribed by law must be followed. The alleged trustee cannot perfect such attachment by consent or stipulation. Barker v. Tabor, 4 Mass. 81. Zani v. Phandor Co. 281 Mass. 139, 148-149. The statutory procedure where the trustee appears is that the trustee make answer in writing, be interrogated in writing, and make sworn answers in writing. G. L. (Ter. Ed.) c. 246, §§ 10-19. There was error in the order bringing forward the evidence and findings in the original case and adopting them in the present case. There is no warrant for such procedure. No inquiry need be made as to circumstances which may render a charging of the trustee in the original proceeding binding on the trustee or controlling on scire facias. Hoyt v. Robinson, 10 Gray, 371. Miller v. Carrier, 11 Gray, 19. Brown v. Tweed, 2 Allen, 566. Cunningham v. Hogan, 136 Mass. 407. Barnes v. Shelburne Falls Savings Bank, 186 Mass. 574, 577. MacAusland v. Fuller, 229 Mass. 316. None of these decisions aid the plaintiff upon the present record. The original proceedings charging the trustee, having been based upon matters not authorized by the statute, carry no finality in the scire facias. The granting of the requests
In the case at bar the trustee was charged originally upon an agreed statement of facts not verified by the oath of any party. The statutory requirements were ignored. The decision could not be final in scire facias. Zani v. Phandor Co. 281 Mass. 139, 149. The plaintiff’s requests were denied rightly. It is to be observed that the record discloses no determination of the rights of Gilman as assignee of the original defendant. Dix v. Cobb, 4 Mass. 508, 512.
Order denying motion to dismiss appeal affirmed.
Order dismissing report affirmed.