316 Mass. 227 | Mass. | 1944
This is a bill in equity, inserted in a trustee writ, which was brought by the plaintiff to recover $2,000 alleged to be due for services as booking agent in accordance with a contract made by him with the defendant The Hot
Todd makes but two contentions, first, that he has not submitted himself to the jurisdiction of the court, and, secondly, that the plaintiff has no cause of action cognizable by a court of equity because the interest sought to be reached in a certain executory theatrical contract between Mikado and Shubert could not be reached in equity and the funds in the hands of Shubert, as trustee, which was all that was attached, could be attached at law.
There is no dispute that the contract for the performances . of the play was between Shubert and Mikado and not between Shubert on one side and Mikado and Todd on the other, as the bill alleged. It is agreed that the attachments held funds due to the defendant Mikado to the extent of $2,100. After the plaintiff had attached by the trustee writ and by a special precept, G. L. (Ter. Ed.) c. 246, § 5, c. 223, § 86, $2,100 due Mikado in the hands and possession
The claimant, however, was also named as defendant in the bill which alleged that both he and Mikado were parties to the contract under which the plaintiff was attempting to establish a claim against both of them. In his petition to intervene Todd alleged that the plaintiff had no cause of action cognizable in equity. Only the funds of Mikado had been attached, and the only claim that Todd had to the attached property was through Mikado. He did not request that the court determine whether the plaintiff had a cause of action against Mikado alone. What he sought was an adjudication that the plaintiff had no cause of action enforceable in equity against either Mikado or himself. None of the prayers of the petition specifically sought an adjudication of his title to the property attached, or any order that the trustee deliver this property to him. Instead, he requested the court to protect his interests as principal on the bond which he had given to dissolve the attachment. It is doubtful in these circumstances whether Todd was entitled to have the court entertain the petition so that it might pass upon his liability upon the bond. Finally, the petition contains a prayer for general relief or,
The judge, instead of ruling that Todd by seeldng relief of the character mentioned had become subject to the jurisdiction of the court, ruled that he had submitted himself to the jurisdiction to the extent of the property attached. The effect of this ruling was to limit this defendant’s liability upon the plaintiff’s claim to the interest that Todd had in the property attached and any judgment if rendered against him would run only against the property as attached. Cheshire National Bank v. Jaynes, 224 Mass. 14. Salmon Falls Manuf. Co. v. Midland Tire & Rubber Co. 285 Fed. 214. The effect of that order was not to make Todd a defendant for all purposes as he seems to contend. Furthermore, we do not know what took place at the hearing upon the motion to take the bill for confessed. In any event, Todd has no just complaint with respect to the ruling that he had submitted to the jurisdiction of the court to the extent of protecting his interest in the trusteed funds and was required to file an answer. It has been held that the dissolution of a trustee attachment by the giving of a bond conditioned to pay any judgment that the plaintiff might recover in an action brought against nonresident defendants who had not been served with process constituted a general appearance. Britton v. Goodman, 235 Mass. 471.
This defendant next contends that the bill does not set out a cause cognizable in equity or, to put it more specifi
It follows that all the interlocutory decrees appealed from by Todd must be affirmed. As Todd was made a party defendant only for the purpose of protecting his interests in the attached funds, the final decree should not run against him personally. The third, fourth, fifth and sixth paragraphs of that decree must be struck out. The following words appearing at the end of the second paragraph must be struck out, to wit, “and is ordered to pay to plaintiff the amount of $2,100 which it holds as trustee.” The final decree as so modified must be affirmed with costs.
Ordered accordingly.