220 Mass. 285 | Mass. | 1915
The amended return on the writ having been insufficient to show any personal service on the defendant, a foreign corporation, described in the writ as having a usual place of business at Boston in this Commonwealth, the court could not enter judgment against the company, which has appeared specially for the purpose of pleading in abatement or to move that the action be dismissed. St. 1903, c. 437, § 62. R. L. c. 170, § 1. Eliot v. McCormick, 144 Mass. 10. Needham v. Thayer, 147 Mass. 536. Kimball v. Sweet, 168 Mass. 105. Roberts v. Anheuser Busch Brewing Association, 215 Mass. 341, 343. Lawrence v. Bassett, 8 Allen, 140. Crosby v. Harrison, 116 Mass. 114. But, as the action
The question whether the alleged trustee should be charged depends upon its answer, which is to be taken as true, as no interrogatories have been filed. R L. c. 18C, §§ 9-17. Fay v. Sears, 111 Mass. 154. Corsiglia v. Burnham, 189 Mass. 347.
To maintain an effectual attachment there must be at the date of service a subsisting cause of action which the debtor can enforce against the trustee in his own name, or the debtor must have entrusted to or deposited with the trustee specific goods or effects. Wart v. Mann, 124 Mass. 586. Casey v. Davis, 100 Mass. 124. Howland v. Wilson, 9 Pick. 18.
It is expressly stated in the answer, that at the date of service the trustee, an interstate railroad company, had in its possession a large number of freight cars that were the property of the defendant, also engaged in interstate commerce. The cars, if subject to garnishment, were undoubtedly goods or chattels within the meaning of R. L. c. 189, §§ 12, 13, 19. Brown v. Floersheim Mercantile Co. 206 Mass. 373. Rosenbush v. Bernheimer, 211 Mass. 146. See also Sts. 1905, c. 324; 1910, c. 214, §§ 23, 24; c. 559, § 3. If received here and to be returned in the ordinary course of business, we should hesitate to say that under no circumstances cars of a foreign railroad company would not be subject to attachment under our laws because the attachment temporarily might interfere with interstate commerce or with the provisions of U. S. Rev. Sts. § 5258, securing continuity of interstate transportation. Davis v. Cleveland, Cincinnati, Chicago & St. Louis Railway, 217 U. S. 157. Simpson v. Shepard, 230 U. S. 352, 410. International Harvester Co. v. Kentucky, 234 U. S. 579, 588. DeRochemont v. New York Central & Hudson River Railroad, 75 N. H. 158. Southern Flour & Grain Co. v. Northern Pacific Railway, 127 Ga. 626. Compare Connery v. Quincy, Omaha & Kansas City Railroad, 92 Minn. 20, Wall v. Norfolk & Western Railway, 52 W. Va. 485, and Seibels v. Northern Central Railway, 80 S. C. 133. Doubtless the compulsory enforcement of a legal right by due process of law may result in
The trustee, however, received and retained the cars under an arrangement or agreement with the defendant which gave it the right to despatch them to the place of destination on its own lines, instead of transferring the freight to its own cars for further and final transportation. It also could use the empty cars for the carrying of freight between different points on its own road, and on the lines of other railroad companies directly or indirectly connected with the railroad of the owner of the cars, upon payment of fixed daily charges, so long as any car remained on tracks that the trustee owned or controlled. The cars thus became for the time being part of its equipment, and compensation therefor ceased only when they passed out of the trustee’s possession and control. Foster v. New York, New Haven, & Hartford Railroad, 187 Mass. 21. McNamara v. Boston & Maine Railroad, 202 Mass. 491. If the trustee is chargeable, it must retain actual possession so that the cars can be seized on execution. Brown v. Floersheim Mercantile Co. 206 Mass. 373, 376. And if this precaution is not taken it would be answerable for their value, but not to exceed the amount of the judgment. R. L. c. 189, §§ 57-65. Cornell v. Mahoney, 190 Mass. 265, 266. Thompson v. King, 173 Mass. 439. The bailment cannot be said to be in violation of any rule of public policy to which common carriers of freight should conform. And upon the further statement in the answer, that the cars were in actual use under the agreement at the time of service and that to carry on its business as a carrier of property independently of the arrangement would be practically impossible, the trustee ought not to be subjected to the expense of unloading and redistribution of their contents, or to the pecuniary loss from interference with the use of the cars which would be incurred if, having been emptied, they were collected and retained unused to await the result of the litigation. Van Camp Hardware & Iron Co. v. Plimpton, 174 Mass. 208. Cox v. Central Vermont Railroad, 187 Mass. 596, 609.
The trustee not being chargeable, it becomes unnecessary to determine whether the attachment was invalid because of the plaintiff’s failure to comply with the provisions of R. L. c. 167,
The order of dismissal is affirmed, and the motion of the trustee to be discharged is granted.
So ordered.
