Universal Optical Corp. v. Globe Optical Co.

228 Mass. 84 | Mass. | 1917

Braley, J.

It has been decided repeatedly that the original action by trustee process and the writ of scire facias provided by R. L. c. 189, §§ 45-49, where the trustee upon -.demand does not pay over to the officer goods, , effects or credits sufficient to satisfy the execution which is to be sued out from the court where judgment was rendered, and the execution is not satisfied -otherwise, “are part of one continued and connected course of proceedings,” and that “the examination of the trustee” in the scire facias “is to be in the same manner and with the same effect” as in the original action. It is plain that no provision is made for a jury trial] as the answers of the trustee to interrogatories propounded to the trustee in scire facias are to be considered as true and conclusive, although either party may allege and prove facts not stated or denied by the trustee, which may be material in determining how far the trustee is chargeable. Bickford v. Boston & Lowell Railroad, 21 Pick. 109, 113. Fay v. Sears, 111 Mass. 154. Phillips v. Meagher, 166 Mass. 152. Koontz v. Baltimore & Ohio Railroad, 220 Mass. 285.

When thus used the scire facias is in no sense an independent civil action, but is a judicial writ to enforce a judgment charging the trustee either upon his answer admitting goods, effects or credits, or after he had been defaulted. M’Gee v. Barber, 14 Pick. 212, 215. Gray v. Thrasher, 104 Mass. 373, 375. Perkins v. Bangs, 206 Mass. 408, 415.

It follows that, the original actions not having ..been removed from the Municipal Court to the Superior Court in accordance with the St. of 1912, c. 649, §§ 2, 3, as amended by St. 1914, c. 35, § 2, and St. 1914, c. 409, and the question whether the trustee was chargeable having been taken by him to the Appellate Division, who ordered that the trustee be charged, and no appeal from this order having been taken to this court under St. of 1912, c. 649, § 9, as amended by St. 1914, c. 35, § 4, the ruling that the Superior Court was without jurisdiction to entertain the appeals was correct. Perkins v. Bangs, 206 Mass. 408, 416.

The order dismissing the appeals and directing that the papers be transmitted to the Municipal Court of the City of Boston is to stand. Dion v. Powers, 128 Mass. 192.

So ordered.