(DOWNLOAD) "Hyde Park Sav. Bank v. Davankoskas" by Supreme Judicial Court of Massachusetts # eBook PDF Kindle ePub Free
eBook details
- Title: Hyde Park Sav. Bank v. Davankoskas
- Author : Supreme Judicial Court of Massachusetts
- Release Date : January 06, 1937
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 69 KB
Description
LUMMUS, Justice. The findings of the Judge show the following facts: The defendant Davankoskas, on October 9, 1935, brought a bill under G.L.(Ter.Ed.) c. 214, § 3(7), to reach and apply, in payment of a debt due from one Budris, property alleged to be in the possession of the plaintiff bank. On October 10, 1935, a subpoena was served upon the plaintiff bank, but the assistant treasurer, mistaking the process for the copy of a writ in trustee process at law (G.L.[Ter.Ed.] c. 246, § 5), filed it away. If it had been a copy of a writ in trustee process, there would have been little risk in failing to appear and answer and in letting judgment be entered by default, adjudging the plaintiff bank to be charged as trustee (Jarvis v. Mitchell, 99 Mass. 530, 532), for by the common practice it could make its defense later on the scire facias. MacAusland v. Fuller, 229 Mass. 316, 319, 118 N.E. 655; Barringer v. Northridge, 266 Mass. 315, 318, 165 N.E. 400; Kolda v. National Ben Franklin Fire Ins. Co., 290 Mass. 182, 195 N.E. 331. But though a bill to reach and apply has sometimes been said to be 'in the nature of an equitable trustee process' (Weinberg v. Brother, 263 Mass. 61, 62, 160 N.E. 403), the practice and particularly the normal effect of a default are not the same as in trustee process. The plaintiff bank failed to appear or answer, a decree was entered under rule 25 of the superior court (1932) taking the bill for confessed against it, and on February 21, 1936, a final decree was entered, ordering the plaintiff bank to pay to the defendant Davankoskas the unpaid balance of her claim against Budris, with costs. On November 25, 1936, by leave of court, the plaintiff bank filed the present bill for the review of the final decree. The bill alleges that in truth the plaintiff bank had no property of Budris in its possession and owed him nothing when the subpoena was served on October 10, 1935. The Judge found that 'the bank should have an opportunity to make a defense on the merits to the original bill.' By a final decree upon the present bill the original final decree of February 21, 1936, was vacated 'in so far as said decree affects' the plaintiff bank, and it was ordered that the original case 'proceed to be heard upon the merits.' See Boston & Maine Railroad v. Greenfield, 253 Mass. 391, 399, 400, 149 N.E. 322. The defendant Davankoskas appealed.
 "Hyde Park Sav. Bank v. Davankoskas" by Supreme Judicial Court of Massachusetts # eBook PDF Kindle ePub Free){kind=link}