Webster v. Adams , 58 Me. 317 ( 1870 )

Appleton, C. J.

This action was commenced. Dec. 19, 1886, and served on the trustees before any suit was brought by the defendant against the trustees. The plaintiff, by virtue thereof, acquired a lien upon the indebtedness of the trustees to the principal defendant, if any there was.

By R. S. 1857, c. 86, § 29, as amended by c. 120 of the acts of 1862, “ the answers and statements sworn to by a trustee shall be deemed true in deciding how far he is chargeable, until the contrary is proved; but the plaintiff, defendant, or trustee may allege and prove any facts material in deciding that question.”

By § 30, “ any question of fact, arising upon such additional allegations, may, by consent, bo decided by the court, or submitted to a jury in such manner as the court directs.”

The plaintiff, in this case, filed additional allegations.

It has been held in Benner v. Dennison, 36 Maine, 227, that a trustee is to be regarded as a party with rights adverse to the plaintiff. Having commenced his action and acquired a lien on any indebtedness from the trustee to the defendant, the plaintiff had a right to offer proofs and to be heard by himself or counsel before the court or jury, as to the indebtedness of the trustee and as to its amount. This right is given by statute, c. 86, § 30.

Where the trustee suit is subsequent in time to that of the defendant therein against the trustee, the judgment obtained in the suit first, in order of time, would seem to be conclusive, upon the plaintiff in the trustee suit, §§ 56, 57, 58. By the last section, the first suit is to “ proceed so far as to ascertain by a verdict, or otherwise, what sum, if any, is due from the defendant.” The plaintiff in the trustee suit holds only what is found by a jury or the court to be due. But in the present case, the suit, Adams v. Foster, was commenced on March 1, 1867, and long after the bringing of the trustee process. In such case, by § 66, “if any alleged trustee is discharged, the judgment shall be no bar to an action brought by the principal defendant against him for the same demand.”

Is, then, the judgment, when in favor of the trustee in a suit subsequently brought by the principal defendant against him, conclusive upon the question of his discharge. We think not. The trustee suit was first in time and first in right. The plaintiff in the trustee suit had no right to be a party to the suit subsequently brought, to employ counsel therein, to summon witnesses, or to be heard in its disposition. He had a right to do this in the suit commenced by himself, and the defendant, in the action first commenced, cannot divest him of such existing right by bringing a suit against the trustee.

Further, the action, Adams v. Foster, related only to the lumbering operations of the winter of 1858-9. These parties were engaged in similar operations in other winters. The judgment had no relation to those operations. It could not, in any event, be a bar to the plaintiff’s right to hold the trustees for any indebtedness, the existence of which was not involved in that action, and could not be determined therein. Fxceptions sustained, and the trustees to answer further.

■Cutting, Kent, Dickerson, Barrows, and Tapley, JJ., concurred.