Sprague v. Auffmordt

Knowlton, C. J. Some of the trustees failed to file answers seasonably, and were defaulted. Afterwards the defaults were stricken off and the trustees were allowed to file answers. Their answers being made under oath and showing no funds in their hands, they were, upon their several motions, discharged. The [8] plaintiff, before they were discharged, filed a motion in each case to vacate the order taking off the default and allowing the filing of an answer. These motions were denied. The plaintiff appealed from the orders denying them and from the orders discharging the trustees, and the case is before us on these appeals. The statute gives the court power, in its 'discretion, to take off defaults at any time before judgment. St. 1885, c. 384, § 10. E. L. c. 173, § 54. We are of opinion that this part of the statute applies to trustees as well as to principal defendants. It must be assumed, therefore, that the court acted properly in taking off the defaults, and rightly denied the motions to vacate the orders. Inasmuch as the several answers disclose no property in the hands of the trustees, they were rightly discharged. Many months had elapsed after the answers were filed, and it is not contended that the plaintiff lacked opportunity to interrogate the trustees, or that he desired to interrogate them, or to show in any way that there were funds in their possession. His contention that, because the defendants were absent from the Commonwealth and no service was made upon them and a bond was given to dissolve the attachment, the trustees ought not to have been discharged, is without foundation. The bond was only to pay the sums for which the trustees should be charged, and the plaintiff, by a process of this kind, could not in any event get jurisdiction of the defendants to obtain a judgment against them personally. The jurisdiction of the court was only to render a judgment against such property as had been attached. Eliot v. McCormick, 144 Mass. 10. The trustees contend that the appeals are prematurely entered. It is true that an appeal upon an interlocutory question, ordinarily cannot be heard in this court until further proceedings are had in the case and the case is ripe for judgment. But in the present case the only parties before the court are the plaintiff and the trustees, and the order discharging the trustees is in effect an order for a final judgment. Kellogg v. Waite, 99 Mass. 501. Wasson v. Bowman, 117 Mass. 91. This order being valid, the plaintiff cannot proceed further in the case, for there is no attachment, and no jurisdiction of the [9] defendants. We are, therefore, of opinion that the appeal is properly before us. Commonwealth v. McCormack, 126 Mass. 258. Commonwealth v. Dunleay, 157 Mass. 386. Maley v. Moshier, 160 Mass. 415. Order discharging trustees confirmed.