Roberts v. United States Trust Co. , 234 Mass. 224 ( 1919 )

Braley, J.

It appears from the transcript of the docket entries and copies of the pleadings and various motions which may be read in connection with the printed record, that, after the defendant’s petition for interpleader had been filed and allowed, the money paid into court, and the claimant had appeared and interpleaded, and the court had found in his favor, the presiding judge apparently on his own initiative ordered a new trial as shown by the following order: “A new trial is herewith granted for the sole purpose of a hearing on the petition for interpleader, on condition that the court may make such new disposition of the case as is warranted by the evidence heretofore heard and the rulings requested under the plaintiff’s declaration, the defendant’s answer and the claimant’s claim, the plaintiff’s right of appeal and to report from said new disposition being preserved.” The case thereafter came on for a hearing before another associate judge on the plaintiff’s motion to dismiss the claimant’s claim, who after a hearing “made the following finding, . . . The claimant’s claim maintained,” and reported the case to the Appellate Division, which dismissed the report. The plaintiff thereupon appealed to this court on the grounds, that he was “aggrieved by the exclusion of the evidence and the offer of proof made by him at said hearing, . . . and by the refusal of the court to rule as requested,” and “by the . . . order, that the claimant’s claim maintained.” -

The printed record, even when supplemented, is indefinite and uncertain almost to the point of complete obscurity. The transcript of the docket entries shows these entries: “Mch. 16, 1918. Court finds for Clt. in Interpleader. Memo of rulings filed.” “Mch. 19, 1918. Plff. files Req. for Report.” “Mch. 22, 1918. Draft Report filed.” “Apr. 15, 1918. Motion to Amend Claimant’s Answer filed. & Ail’d.” “June 10, 1918. Plffs. Motion for New Trial filed heard & denied.” “June 11, 1918. Plff. files Req. for Report.” “June 21, 1918. New Trial ordered by trial judge, for sole purpose of a hearing on petition for inter-pleader.” “June 25, 1918. Motion to Dismiss Claim of Clmt Brown, heard & reserved, Bennett, J.” "June 28, 1918. By order of Court, Bennett, J., Mo. to Dis. CImts. Claim, disch. from further consideration and without prejudice.” “July 16, 1918. Plff. files motion for change venue.” “Sept. 13, 1918. Cits. Claim maintained. Req. for Rulings filed by Plff. Memo, of rulings made.” “Sept. 14, 1918. Plff. files Req. for Report & Draft Report,” which having been allowed is the report before us on the appeal.

The record shows that the defendant had no pecuniary interest in the controversy, and having admitted liability and the amount in dispute being claimed by Brown who had been summoned in, the defendant was properly allowed to deposit the money with the court and Brown was rightly admitted as claimant. R. L. c. 173, § 37. Converse v. Ware Savings Bank, 152 Mass. 407. Burr v. Commonwealth, 212 Mass. 534. See St. 1916, c. 174, § 2.

We treat the motion to dismiss and the hearing thereon as a trial of the merits.

The judge was warranted in finding from his answers to the plaintiff’s interrogatories, that the claimant had left the promissory note with the defendant for collection, and after collection from the plaintiff credited the claimant with the proceeds. While the date of the writ can be ascertained from the transmitted copy it does not appear that any.service was"'ever made. But if it be assumed as set forth in the declaration that the plaintiff as an indorser'paid the money under mistake and upon discovery of the mistake sued to recover the amount, and that after service the claimant returned to the defendant the proceeds with the costs of protest to be held pending the disposition of the case, the defendant had acted only as the claimant’s agent. It held the money as a mere stakeholder.

■The first, second and third requests were properly denied. The fourth and sixth requests are disposed of by the judge’s statement, that he did not find the facts to be as assumed in the requests. The rulings on the admission of evidence also were correct. The trial was between the plaintiff and the claimant, and the statement in writing, or certificate of the defendant’s secretary, that such credit had been given, the introduction of which was put on the ground of corroborating the claimant’s answers which were uncontradicted, were inadmissible. The conversations and the statement of the secretary were hearsay.

It follows that, the finding that the claimant’s claim had been maintained in so far as the question is one of fact having been warranted by the evidence, and no error of law being shown, the order of the Appellate Division dismissing the report must be affirmed. St. 1912, c. 649, § 8.

So ordered.