Moors v. Ladenburg, 178 Mass. 272

Moors v. Ladenburg

178 Mass. 272 | Mass. | 1901

Holmes, C. J.

This is an appeal from a decree of the Superior Court dismissing the plaintiffs’ bill, on motion, for want of jurisdiction. The object of the bill is to restrain the defendants from proceeding further in a suit against a non-resident debtor whose property they have attached, on the ground that since the suit was begun they have been paid. The plaintiffs are creditors of the same debtor and have an attachment on the same property, but subsequent to that of the defendants. The defendants also are non-residents, and the only service obtained has been upon the lawyer employed by them in the suit sought to be enjoined.

The plaintiffs are content that their bill should be dismissed if they have a right to file a petition in the suit under Pub. Sts. c. 161, §§ 110-120. By § 110 a later attaching creditor “ may dispute the validity and effect of the prior' attachment, on the ground that the sum demanded in the first suit was not justly due, or wás not payable when the action was commenced.” The sum demanded by the defendants was justly due “ when the action was commenced,” and therefore the plaintiffs are not *275helped unless the words last quoted qualify “ payable ” alone and not “ due.” In the Revised Statutes there was a comma after “ payable ” as well as after “ due,” Rev. Sts. c. 90, § 83, but in the report as printed of the commissioners, who contrived this-remedy as a substitute for existing statutes, the punctuation was as at present, c. 90, § 73. A more substantial ground for argument is to be found in § 113, “ if it appears to the court that a part of the sum demanded in the prior suit is not justly due, or was not payable when the action was commenced,” it shall order the attachment dissolved etc. This follows the language originally suggested by the commissioners and certainly looks like an investigation of the present state of indebtedness, and seems to confine the reference to the commencement of the action to the word “ payable.” On the other hand in § 110, equally following the original language, the words are “ was not justly due," and the “ was” can be explained only by reference to the time when the action was begun. This latter phrase seems to us to be the governing and least ambiguous expression of intent, and to lay down a more convenient rule than if the creditor were allowed to go into the state of the accounts between the plaintiff and the defendant since the action was begun. The notes to the Revised Statutes show that the sections were intended to prevent fraud in attachments, and evidently have in mind the case where a debtor procures or permits his property “ to be attached by one who has no legal cause of action against him.” Notes to §§ 73-82. We are of opinion that the plaintiffs have not a remedy under the statute.

With regard to the present bill there is no doubt of the general principle that when you have a res within the jurisdiction of the court the court may deal with it, although it cannot reach the person of the owner. See e. g. Felch v. Hooper, 119 Mass. 52; McCann v. Randall, 147 Mass. 81; Short v. Caldwell, 155 Mass. 57 ; Du Puy v. Standard Mineral Co. 88 Maine, 202, 210. There is no doubt, either, that there is such a res within the jurisdiction here. The attached property, which is the only matter concerned in the defendants’ suit, as the foreign debtor did not appear, is here, and remotely the object of the plaintiffs’ proceeding is simply to require the defendants to keep their hands off it. That, however, is not the immediate scope of this *276bill. The res at which the bill aims is the lawsuit, but that also is a res within the territorial jurisdiction of this Commonwealth. The difficulty in the case and the doubt is on the question whether the court has laid its hands on any res sufficiently to deal with it, and whether it can do so under the bill as framed.

Of course the court of equity does not enjoin the judges of the court of common law. See Winchester v. Thayer, 129 Mass. 129, 134,135. Yet if not', the question is how it is to get hold of the suit. It might enjoin the lawyer engaged for the time being on the defendants’ behalf. But the lawyer is not made a party, and service on him as representing the defendants is a different matter. . On the whole, however, when it is considered that the only acts which it is sought to prevent are acts in this jurisdiction and in a Massachusetts court, and that they are acts which cannot be done except by agents locally present, we think that the court properly may issue its order addressed to the defendants forbidding them or their agents to do those acts here; and that it such an order or decree is served on the attorney, who is the same person as the defendants for the purposes of the suit sought to be enjoined, (Pearl v. West End Street Railway, 176 Mass. 177, 179,) that service is sufficient to make a further attempt to proceed with that suit a contempt. Marco v. Low, 55 Maine, 549, 553. Chalmers v. Hack, 19 Maine, 124, 127. See Claflin v. Lowe, 157 Mass. 252, 254 ; Aldrich v. Blatchford, 175 Mass. 369.

Decree reversed.