Creed v. Gilman

Massachusetts Supreme Judicial Court

Creed v. Gilman

48 N.E. 778, 169 Mass. 562, 1897 Mass. LEXIS 119

CourtMassachusetts Supreme Judicial Court

DecidedNovember 24, 1897

StatusPublished

Cited by3 cases

This text of 48 N.E. 778 (Creed v. Gilman) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Creed v. Gilman, 48 N.E. 778, 169 Mass. 562, 1897 Mass. LEXIS 119 (Mass. 1897).

Pincite

Opinion

Morton, J.

We think that, as against the claimant, the acceptance of service by the trustee did not create a lien on the funds in his hands in favor of the plaintiff. An attachment valid as against third persons can be made only in the manner provided by law. It does not arise in such a case by consent of parties. The issuing of a writ does not create it. Something more is necessary. And that, we think, is the arresting of the debt in the hands of the trustee, which is effected by a service of the writ on him by a duly authorized officer. Nelson v. San[563]*563born, 64 N. H. 310. Edler v. Hasche, 67 Wis. 653. Epstein v. Salorgne, 6 Mo. App. 352. Gates v. Tusten, 89 Mo. 13. Schindler v. Smith, 18 La. An. 476.

The trustee process, as it is termed in this Commonwealth, or process of foreign attachment or garnishment, as it is called elsewhere, is so far as relates to the trustee an attachment of the property in his hands, and a summons to him to appear at court. And it well may be that an acceptance of service on his part should be regarded as a waiver by him of so much of the process as contains a formal notice to appear, and that, if the defendant does not object and the rights of third parties are not affected, a voluntary appearance and answer on his part should be regarded as sufficient. Harris v. Somerset & Kennebec Railroad, 47 Maine, 298. Whitney v. Lehmer, 26 Ind. 503. Baltimore, Ohio, & Chicago Railroad v. Taylor, 81 Ind. 24. Carter v. Koshland, 12 Ore. 492. Roy v. Heard, 38 Miss. 544.

It is not necessary, however, to decide that question now. The only case to which we have been referred, which takes a different view from that which we have taken, is the case of Cahoon v. Morgan, 38 Vt. 234, which is contrary to the earlier case of Wilder v. Weatherhead, 32 Vt. 765, in the same State, and, we think, to the weight of authority.

Exceptions overruled.

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Morton, J.

We think that, as against the claimant, the acceptance of service by the trustee did not create a lien on the funds in his hands in favor of the plaintiff. An attachment valid as against third persons can be made only in the manner provided by law. It does not arise in such a case by consent of parties. The issuing of a writ does not create it. Something more is necessary. And that, we think, is the arresting of the debt in the hands of the trustee, which is effected by a service of the writ on him by a duly authorized officer. Nelson v. San[563]*563born, 64 N. H. 310. Edler v. Hasche, 67 Wis. 653. Epstein v. Salorgne, 6 Mo. App. 352. Gates v. Tusten, 89 Mo. 13. Schindler v. Smith, 18 La. An. 476.

The trustee process, as it is termed in this Commonwealth, or process of foreign attachment or garnishment, as it is called elsewhere, is so far as relates to the trustee an attachment of the property in his hands, and a summons to him to appear at court. And it well may be that an acceptance of service on his part should be regarded as a waiver by him of so much of the process as contains a formal notice to appear, and that, if the defendant does not object and the rights of third parties are not affected, a voluntary appearance and answer on his part should be regarded as sufficient. Harris v. Somerset & Kennebec Railroad, 47 Maine, 298. Whitney v. Lehmer, 26 Ind. 503. Baltimore, Ohio, & Chicago Railroad v. Taylor, 81 Ind. 24. Carter v. Koshland, 12 Ore. 492. Roy v. Heard, 38 Miss. 544.

It is not necessary, however, to decide that question now. The only case to which we have been referred, which takes a different view from that which we have taken, is the case of Cahoon v. Morgan, 38 Vt. 234, which is contrary to the earlier case of Wilder v. Weatherhead, 32 Vt. 765, in the same State, and, we think, to the weight of authority.

Exceptions overruled.

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48 N.E. 778, 169 Mass. 562, 1897 Mass. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creed-v-gilman-mass-1897.

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