176 Mass. 48 | Mass. | 1900
The proceedings at the hearing were correct. Under our present practice issues of law and issues of fact may be joined in the pleadings upon a writ of error. Eliot v. McCormick, 141 Mass. 194. A single justice may properly hear all the evidence on the issues of fact, and, if he chooses, report the case to the full court.
The questions principally discussed at the argument have been fully considered in recent cases of high authority, and decided adversely to the plaintiffs in error. There was an attachment in due form by trustee process of debts due the original defendants from debtors residing in this Commonwealth. Pub. Sts. c. 164, § 1; c. 183, § 1. Such an attachment gives jurisdiction to render a judgment which will be valid everywhere as against the property attached. Ocean Ins. Co. v. Portsmouth Marine Railway, 3 Met. 420. Folger v. Columbian Ins. Co. 99 Mass. 267. Eliot v. McCormick, 144 Mass. 10. Cooper v. Reynolds, 10 Wall. 308. Pennoyer v. Neff, 95 U. S. 714. Freeman v. Alderson, 119 U. S. 185. Chicago, Rock Island, & Pacific
The plaintiffs in error do not contend that the attachments would not be effectual to give jurisdiction against the property if real estate or specific goods were attached; but their principal contention is that a debt due from a trustee to a non-resident defendant cannot be effectually attached under the statute cited. This contention is answered as to the law of this Commonwealth by the first two cases cited in the last paragraph. The plaintiffs in error contend that the debts due them from debtors in Massachusetts were not property within this Commonwealth upon the attachment of which jurisdiction could be founded as against a non-resident on whom no service was made in this State, and they argue that the situs of the property was in the State of New York, where they resided. It is true that for most purposes the situs of credits follows the creditor, and that their situs for taxation, or for administration after the death of the creditor, is ordinarily in the place of his domicil; but so far as the question before us depends upon the situs of the debt, it must be held that the situs in reference to collection is in the place where proceedings may be had against the debtor. That which ought to be paid is presumably in the possession of the debtor, wherever he happens to be. The debt can be collected by law only in the place where jurisdiction of the debtor can be obtained. The creditor may go there to collect his debt. The situs of the debt, viewed as his property, follows him thither. The plaintiff in the trustee process represents the creditor’s right. The question is, where the debt as property should be deemed to be situated in reference to process for collection. Practically it must be where the debtor is amenable to suit. This is the rule adopted by courts generally in the construction of statutes for the collection of debts by trustee process. Any other construction would leave these statutes ineffectual for the purposes for which they were enacted. In Cross v. Brown, ubi supra, the subject was considered at length with a citation of the authorities, and this conclusion was reached. In Chicago, Rock Island, Pacific Railway v. Sturm, ubi supra, there was a discussion of the subject in reference to constitutional questions, with the same result, and in King v. Cross, ubi supra,
' In the present case not only was there an attachment effectual to give jurisdiction to render the judgment against the defendant, but there was a voluntary' general appearance by the original defendants which gave jurisdiction to render a personal judgment against them. They appeared by duly authorized attorneys in the usual way, and contested the case at all stages until judgment was rendered. That such an appearance gives jurisdiction without reference to service is familiar law. Pub. Sts. c. 167, § 82. Loomis v. Wadhams, 8 Gray, 557, 561. Gilman v. Gilman, 126 Mass. 26. Wright v. Andrews, 130 Mass. 149. Eliot v. McCormick, 144 Mass. 10. Hazard v. Wason, 152 Mass. 268. Cooper v. Reynolds, 10 Wall. 308, 317. Pennoyer v. Neff, 95 U. S. 714, 723, 731, 733.
Most of the other questions raised are sufficiently answered by the Pub. Sts. c. 187, § 3, which is as follows : “ A judgment in a civil action shall not be arrested, or reversed for a defect or imperfection in matter of form which might by law have been amended; nor by reason of a mistake respecting the venue of the action; nor because the judgment is not in conformity with the allegations of the parties, if it is in conformity with the verdict; nor shall any error in law in a civil action in which the defendant appeared and a verdict was rendered, except such as occurs after verdict, be assigned in a writ of error. But nothing herein contained shall prevent either party from assigning an error affecting the jurisdiction of the court.”
Apart from this statute, the writ cannot be maintained. There is no necessary inconsistency between the counts of the declaration, and no such irregularity or imperfection as to affect the validity of the judgment. If the original defendants had raised objections by demurrer, it may be that an amendment would have been necessary, but it is plain that the judgment is well supported by the declaration. Hillman v. Whitney, 2 Allen, 268. The amendments to the declaration were regularly allowed
The action is not for the recovery of a penalty, but to recover the value of goods conveyed in fraud of the laws relating to insolvency, and it properly might be commenced by trustee process. Pub. Sts. c. 157, §§ 96-98; c. 183, § 1.
The allowance of fees to two of the witnesses in the taxation of costs, upon a certificate signed in their name by their duly authorized agent, was not erroneous. The Pub. Sts. c. 199, § 14, is not to be construed so strictly as to require that the certificate shall be signed by the witness with his own hand. If the taxation were erroneous in this particular it is at least doubtful whether the mistake could be taken advantage of by a writ of error. See Goodrich v. Willard, 11 Gray, 380.
The entry of the judgment by the clerk without a special order of the court was in accordance with the statutes, and the rule of the court which requires the entry of judgments under the general order of the court at stated times in all cases which are ripe for judgment. Pub. Sts. c. 171, § 1. St. 1885, c. 384, § 12. Rule 27 of the Superior Court. It does not appear from the record that any judgment of a court in the State of New York was put in evidence at the trial, and the only judicial proceedings in that State referred to in the papers are suits to which the defendant in error was not a party.
Judgment affirmed.