Thompson v. Carroll , 36 N.H. 21 ( 1857 )

EowleR, J.

At the first term of its pendency, motion was made to dismiss this action, because a formal writ of error had not been first read out and filed. Thereupon the plaintiff asked and obtained leave to file such writ as of the date of the original process, and all objection for that cause was thus obviated. There was undoubtedly a want of regularity in the proceedings as they stood at the commencement of the firstterm; but as this has since been corrected, and there were circumstances rendering the actual filing of the writ at the institution of the proceedings almost impossible, we think the plaintiff should not suffer by the imposition of terms for the amendment, as we can conceive of no particular inconvenience to which the defendants were subject by the neglect to file it seasonably.

Two errors are assigned as having occurred in the proceeding whereon the original judgment was rendered : first, the want of proper service upon, or notice to Sturtevant, the principal defendant, for whom the plaintiff in error’s intestate was charged as trustee ; secondly, the want of notice of any kind in the original suit to third persons, who might be interested in the notes disclosed, to come in and assert their claims thereto.

The first error assigned does not seem to exist. Sturtevant was described in the writ as “ formerly of Carroll, residence then unknown.” The officer returned that he made no service upon him, for the reason that “ his residence was unknown to him.” Subsequently, although not until after several terms of court had passed, a notice to Sturtevant was ordered to be published in the Coos Democrat newspaper, which order was complied with. This was sufficient. The statute expressly provides that where the goods or estate in this State, of a defendant whose residence is unknown to the officer, shall be attached upon the writ, the court may order the action to be continued, and notice to be given of the pendency thereof by publication in some newspaper printed in the State, the last publication thereof to be air least thirty days before Ae next term of court, &c. Sev. Stat., chap. 186, sec. 5, (Comp. Stat., 480.) These provisions were carefully and strictly followed in giving notice to Sturtevant, and we are not aware of any objection that can properly be urged against it. That it was not ordered or given until after the lapse of several terms, does not seem material, as there is nothing in the statute showing why it may not be given at any time during the pendency of the action. In the case before us, there was a reason why it should not have been given until after the disclosure of the trustee. He was summoned as the trustee of both or either of the principal defendants, and if he had had property, rights or credits of Lane only in his possession, as Lane had been summoned, no notice to Sturtevant would have been necessary. As it proved that he had rights and credits of Sturtevant alone in his hands, it became necessary to notify Sturtevant, and that was properly done.

The second error assigned is more formidable, and entirely fatal to the regularity and validity of the proceedings in the former suit. By the 18th section of the 208th chapter of the Revised Statutes, it is provided that “ -when any trustee shall disclose his indebtedness to the principal defendant upon a negotiable promissory note, payable in this State, the court may make a rule requiring such debtor to appear and answer on oath all interrogatories respecting the possession, transfer or other disposition of such note, and a rule or order of notice to be served on any individual, or published in some newspaper, for the information of any person who may claim an interest in said note, so that such person may appear and show that the same was transferred to -him in good faith, and for an adequate consideration, before the service of such trustee process,” &c. By the 20th section of the same chapter, “ If any such debtor shall refuse to appear upon such order of court, he may be arrested and brought into court upon a capias, and fined not exceeding fifty dollars, and if he shall refuse to answer may be proceeded against as for contempt of court.”

The design of these provisions, and those connected therewith, seems to be to provide a summary mode of obtaining the testimony of the principal defendant as a witness in regard to the. disposition of the note, where deemed advisable, and to secure notice to third persons who may be interested in the note. The true construction of the 18th section is, that whenever a trustee discloses indebtedness by a negotiable note, the court in their discretion may order the principal defendant to appear and testify ; but shall cause to be served on the claimants, if known, or to be published, if unknown, a notice to any and all persons who may claim an interest in the note, to appear and assert their right to it; and if such notice be not served or published, no valid judgment can be rendered charging the trustee. Horn v. Thompson, 11 Foster 573.

In the original suit no such notice was ordered to the claimants of the notes disclosed by the plaintiff in error’s intestate ; in other words, the provisions of the statute essential to give the court jurisdiction in rendering a valid judgment against the trustee, under the circumstances of the case, were not complied with; and consequently there was no authority to render a valid judgment against him upon his disclosure. Where the proceedings depend on the provisions of a statute, those provisions must he strictly complied with, or the proceedings are erroneous and voidable. Eaton v. Badger, 33 N. H. 228 ; Carlton v. Insurance Company, 35 N. H. 162. But the questions arising under this branch of the case were so fully considered and discussed in Horn v. Thompson, before referred to, that it is unnecessary to pursue the subject further.

As the former judgment was clearly erroneous, it must be reversed, a writ of restitution be awarded the plaintiff in error, to recover of the defendants what his intestate lost by the former judgment, and interest thereon from the time of its payment, with costs of this proceeding in error ; and as this court is authorized to render the same judgment here which should have been rendered in the court below, and as the judgment there should have been that the plaintiff in error’s intestate be discharged with costs, the plaintiff in error must also have judgment for the trustee’s costs, as taxed in the Common Pleas at ,$44.25. Judgment reversed.