MacAusland v. Taylor

220 Mass. 265 | Mass. | 1915

Rugg, C. J.

If it be assumed in favor of the trustee that his appeal is properly here and is not entered prematurely, no error of law is disclosed. The trustee filed, by leave of court after verdict in favor of the plaintiff against the defendant, an answer that he had no funds. Then the plaintiff filed nine interrogatories to the trustee, to which no answers were returned until a special order of the court had been made. Then the trustee answered two of the interrogatories in full, answered three others, incompletely as the plaintiff contended, and refused to answer the remaining four. Thereupon, the court ordered further answers to be made and the trustee complied with the order in part, but still refused to answer four interrogatories and appealed from an order of the court directing him to make answer. For such refusal the trustee was defaulted, and from this he appealed. The court had the power to order the default entered, provided the interrogatories were proper and required an answer from the trustee as matter of law.

It appeared from the answers filed that the trustee collected a judgment in favor of the principal defendant amounting to $12,850, of which $200.25 remained in his hands, and that he had paid out the entire balance for attorneys’ fees and other expenses and to the principal defendant. The interrogatories which were not answered were designed to elicit a detailed statement of what the trustee had done with the amount collected on the execution, and where it had been deposited pending the settlement. The plaintiff, having traced a large sum of money into the hands of the trustee, had a right to inquire as to the state of the account in some detail. He was not 'obliged to accept as fina.1 the bald -assertion of the trustee that he had settled with the principal defendant and had paid out all that was due him. Nutter v. Framingham & Lowell Railroad, 131 Mass. 231. The plaintiff justly might ask to know more explicitly the facts upon which that conclusion rested. Brennan v. McInnis, 173 Mass. 471, 474. All the interrogatories were directed to that end. They were not in the nature of cross-examination, nor calculated to contradict any answers given. The answers of the trustee must be accepted and cannot be contradicted, and he cannot be subjected to cross-examination. But, on the other hand, he can be required to testify in answer to interrogatories, as can a witness called upon the stand, with reasonable minuteness as to the subject under investigation. It is doubtful whether an answer could have been required as to some details specified in interrogatory 8 touching other funds with which the receipts collected from the execution might have been commingled. But doubtless a part of it was proper. In view of the general peremptory refusal to answer this interrogatory as well as others, there is no error.

Default of trustee to stand.