Butler v. Starrett , 52 Me. 281 ( 1863 )

The opinion of a majority of the Court was drawn by

Cutting, J.

Statute c. 86, § 13, provides that, — " If any supposed trustee comes into Court at the first term, and submits himself to examination on oath, after having, in writing, declared that, at the time of the service of the trustee process upon him, he had not any goods, effects or credits of the principal in his possession, he shall be entitled to his costs, as in civil actions where issue is joined for trial.”

The allegation in the plaintiff’s writ, in substance, is, that the principal defendant is indebted to the plaintiff!, and, at the same time, the supposed trustee is indebted to the principal defendant: which, if true, there would be no necessity of the appearance of either in Court, but they should submit to a default, and the funds in the possession of the trustee would, by operation of law, and comparatively at small expense, be transferred to the judgment creditor to the amount of his judgment, not exceeding, however, the amount in the trustee’s hands at the time of service of the process upon him, which, if not paid to the officer holding the execution, on demand, within thirty days after judgment, would render such delinquent trustee liable to the process of scire facias.

But, in this case, it would seem, that the supposed trustee was justified in coming into Court and denying the plaintiff’s allegation as to him. Pie does appear at the first term, and declares, in the language of the section, that at the time of the service of the trustee process upon him, he had not any goods, effects or credits of the principal defendant in his possession. Such denial was, in Toothacre v. Allen & trustee, 41 Maine, 324, considered in the nature of a plea; and in Moore v. Towle & trustee, 38 Maine, 133, equivalent to an answer in a bill in equity, both of which issues were to be settled on ulterior proceedings. .This denial, plea or answer it was necessary for the trustee to make before, and as preliminary to submitting himself to examination on oath. The mere filing of such denial would constitute no submission, no more than a prior filing of a plea of the general issue would of itself constitute a defence, in the absence of the defendant when the case was called up for trial; or, in other words, a plea filed, never, in practice, dispenses with the personal attendance of the party so as to prevent a default.

Mow, the trustee contends that, having appeared the first term and filed his denial, in the absence of both the plaintiff and his attorney, he is entitled to costs because, he argues, that such an act is equivalent to submitting himself to examination on oath. To whom did he submit himself to examination? Not to the party interested, or to any party. To submit to an examination implies an exatnining party authorized to put interrogatories eliciting true answers. There has been no such submission.

•Is the trustee excusable for such neglect ? The case finds that the declaration was filed on the seventh day of the term, the day previous to the final adjournment, and that the plaintiff’s attorney was not present during the term. Upon which finding, it is contended that the trustee was excused from submitting himself to an examination under oath, inasmuch as no party was in Court to whom he could submit himself. Such excuse may be plausible, but not legal. The statute is peremptory that the submission shall be at the first term, and this Court has made ample provision for just such a contingency.

Rule 12. "In cases of foreign attachment, when any trustee shall present himself for examination,’ he or his attorney shall give written notice to the attorney for the plaintiff, or, in his absence, cause the same to be noted on the docket; and, upon motion, the Court may fix a time for the disclosure to be made.”

In the absence of the attorney it was incumbent on the trustee to cause to be entered upon the docket that "he presented himself for examination,” and, upon motion, to have a time fixed for the disclosure.

The absence, of the plaintiff’s attorney might dispense with the written notice, but not with such entry upon the docket and an order' thereupon fixing the time for a disclo-, sure. No such docket entry'was made — no such time was fixed, and the rule was wholly disregarded. We cannot sanction such a practice, and we consider the party, who attempted it, to have forfeited all claim to judicial sympathy.

, Exceptions sustained — costs disallowed.

Davis, Walton, Barrows and Daneorth, JJ., concurred.