MacAusland v. Fuller , 229 Mass. 316 ( 1918 )

Rugg, C. J.

This is a scire facias to determine the amount which shall be paid by the trustee in an action begun by trustee process against one Taylor, the principal defendant. R. L. c. 189, §§ 45-49. The claim for trial by jury rightly was waived. There is no provision for such a trial in this proceeding.

The action by trustee process and the writ of scire facias to' determine the amount to be paid by the trustee “are part of one continued and connected course of proceedings.” Universal Optical Corp. v. Globe Optical Co. 228 Mass. 84, 85. At an earlier stage of this proceeding the plaintiff recovered judgment against the principal defendant. The present defendant having been summoned as trustee and having answered, “No funds,” was interrogated as provided in R. L. c. 189, § 11, and for failure to answer certain interrogatories was defaulted and adjudged a trustee. MacAusland v. Fuller, 220 Mass. 265. The court might have gone forward at that time, and determined the amount actually due from the trustee to the principal defendant, which he ought to be ordered to pay to the plaintiff toward the satisfaction of the debt. Cunningham v. Hogan, 136 Mass. 407. But that was not done. The trustee was merely defaulted. The court did not undertake to determine the amount due to the principal defendant from the trustee, which he ought to pay to the plaintiff. That subject was not litigated then and was not adjudicated.

The simple default of the trustee did not render him liable absolutely. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108. The default was not an adjudication of the amount due from the trustee. Cases relied upon by the plaintiff, like Wilcox v. Mills, 4 Mass. 218, 220, and Hall v. Young, 3 Pick. 80, hold that a trustee upon whom service has been made and who has been defaulted cannot thereafter question the jurisdiction of the court over him. They are inapplicable to a proceeding to establish the amount due from the trustee. The cases of Perkins v. Bangs, 206 Mass. 408, and Sigourney v. Stockwell, 4 Met. 518, did not arise on trustee process and therefore have no bearing upon the case at bar. The trustee is not the principal defendant and is not compelled by the statute to appear and to try his whole liability on the original summons, but may present his defence on its merits on the scire facias. That statutory practice has its foundation in the principle that ordinarily the trustee is a stakeholder, having no interest in the litigation between the plaintiff and the principal defendant, and that he ought to be placed in no worse position than he would have been in if lie had not been drawn into that proceeding. Cavanaugh v. Merrimac Hat Co. 213 Mass. 384. See Laughran v. Kelly, 8 Cush. 199. At the hearing upon the scire facias all matters of defence as to the amount due are open to the trustee, which have not been passed upon previously by the court. Therefore, the amount for which the trustee actually is liable must be ascertained at the present stage of the proceedings. The reasons for this are amplified by Chief Justice Bigelow in Brown v. Tweed, 2 Allen, 566. See, also, Jarvis v. Mitchell, 99 Mass. 530, and Barnes v. Shelburne Falls Savings Bank, 186 Mass. 574, 577.

The liability of one sought to be charged as trustee in scire facias ordinarily is to be determined upon an examination by interrogatories and answers, which are to be filed and answered in the same manner and with the same force and effect as in the original action. The interrogatories and answers arising in the initial stage of the proceedings are pertinent for consideration in determining the amount to be paid by the trustee. The answers are to be considered true, and if wilfully false the trustee is liable in an action of tort to pay to the plaintiff the amount of his judgment. R. L. c. 189, §§ 48, 18. Fay v. Sears, 111 Mass. 154. Tryon v. Merrill, 116 Mass. 299. First National Bank of Clinton v. Bright, 126 Mass. 535. Varian v. New England Mutual Accident Association, 156 Mass. 1, 3. Wilde v. Mahaney, 183 Mass. 455, 460. Hubbard v. Lamburn, 194 Mass. 398. See Thompson v. King, 173 Mass. 439. In the case at bar the answers by the trustee to interrogatories filed at the initial stage on their face showed that he was chargeable for the amount for which he was found liable by the judge. The plaintiff does not appear to have pressed for answers to the interrogatories already filed but not answered, nor to have filed any additional interrogatories. He relied on the previous default as establishing the extent of liability of the trustee. But, as has been shown, that contention is unsound.

The oral' testimony offered by the trustee constituted in substance answers to interrogatories six and nine originally filed, which he declined to answer at the stage of the proceedings reported in 220 Mass. 265. Correct procedure required that these answers be in writing. But no substantial fight of the plaintiff has been affected by the reception of oral evidence in place of written answers. St. 1913, c. 716, § 1. Therefore, there was no reversible error in the admission of the testimony of the defendant as to the amount actually due from him to the principal defendant. As the credibility of this testimony was wholly for the trial judge, there is no error of law in the finding based upon it.

Exceptions overruled.