270 Mass. 233 | Mass. | 1930
This is an appeal from a final decree establishing the amount due under a policy of insurance issued by the defendant to Louis F. Russo under the terms of the compulsory insurance act and ordering its payment to the plaintiff. The sum to be paid represented the amount of an unsatisfied judgment in favor of the plaintiff against Louis F. Russo. The defendant in this suit offered no evidence but made a motion “for a directed verdict” at the close of the plaintiff’s case. A contention made by it for the first time at the argument of the case in this court is that the plaintiff cannot recover because Louis F. Russo has not been joined as a party defendant. The proper mode of taking advantage of nonjoinder of parties in equity is by demurrer, plea or answer. Jewett v. Tucker, 139 Mass. 566, 577. Ordinarily the debtor, even if a judgment debtor, should be made a party to a bill to reach and apply property to the payment of his debt. But if we assume that the defendant would have been entitled to have Russo made a party if the question had been properly raised at a time when such matters ordinarily should be considered, it does not follow that it is entitled to such order now. The debt against Russo had been incontrovertibly established by the judgment (St. 1923, c. 149, § 1), and without him as a party the defendant could make all defences to the bill that would be open if he had been joined. No relief is sought against him, and the decree entered will protect the rights of all parties now before the court without prejudice to any rights the defendant may have against Russo. “Where the defect is formal and technical merely, and is only objected to at the hearing, and especially if other parties are needed only for the de
The defendant in its amended answer admitted that it received a report of an accident shortly after February 6, 1927, signed by one Louis F. Russo of Roslindale in the county of Suffolk, and also that the automobile of one Louis F. Russo of Roslindale was then and there by virtue of St. 1925, c. 346, and acts in amendment thereof covered by a motor vehicle liability policy issued by the defendant to him. The trial judge found that the policy issued under St. 1925, c. 346, and acts in amendment thereof to Louis F. Russo was in force in February, 1927, when the plaintiff sustained her injury; that her writ against him appeared to have been served by being left at his last and usual place of abode, to wit, 98 Stanton Avenue, Revere, but that this address was not the home of Louis F. Russo but of his father; that Louis F. Russo at the time lived in Roslindale, but that the summons was later delivered to him; that counsel filed an answer in his behalf, and a default which had been entered was removed on motion of Louis F. Russo; that on January 20, 1928, the plaintiff recovered judgment against Louis F. Russo, and execution issued thereon January 21, 1928, which has not been in any part satisfied; that Louis F. Russo, against whom execution issued, was the same Louis F. Russo who held a motor vehicle liability policy issued by the defendant, and
The trial in which the plaintiff obtained her judgment conclusively determined the fact that Louis F. Russo was legally responsible for the accident and was indebted to the plaintiff because of her injuries caused thereby in the amount of the judgment. Lorando v. Gethro, 228 Mass. 181. The policy required the assured to give notice to the insurer and to cooperate with it, but it also must have provided that a violation of its terms would not defeat the policy so as to bar recovery against it by a judgment creditor. Section 113A (4) added to G. L. c. 175 by St. 1925, c. 346, § 4 (see now 113A as amended by St. 1928, c. 381, § 5). If it be assumed that the defendant did not receive the notice from the assured, for which the contract called, it would still be liable to the plaintiff because of the terms of its contract of insurance. Vance v. Burke, 267 Mass. 394.
Decree affirmed with costs.
