Niel, Tarleton & Co. v. Perkins

53 N.H. 429

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1873
• Status: Published

Opinion

Sargent, C. J.

The statute in relation to trustee process, chapter 230, General Statutes, provides, in section 7, that the plaintiff may notify and take the trustee’s disclosure before the retuni term of the writ; and in section 8, that the trustee may notify and give his deposition before the same term. Section 9 provides, that if the trustee fails to attend on the notice of the plaintiff and give his deposition, he shall bo adjudged chargeable, subject to the provisions of section 12; and section 10 provides, that if the plaintiff, fails to attend upon the notice of the trustee, the trustee shall be discharged, subject to the provision of the same section.

Section 11 provides, that “ if the trustee makes default, he shall be adjudged chargeable for the amount of the judgment, which may be recovered by the plaintiff against the defendant.” Many have doubted whether this section referred to being defaulted at the return term, or some later term in court, or before the magistrate previous to the return term. But we cannot doubt that it refers to the return term, or some other term of the court, and not to the hearing before the magistrate. The latter is provided for in section 9, and that the former was intended, is plain from the report of the commissioners revising the statutes (see page 617). Section 11 and section 12 both have reference to the return term of the writ. Section 11 may be properly read, “ if the trustee [at the return term] makes default,” etc.; and section 12, “ if the trustee appears at the return term,” etc. Section 11 states what shall be done if the trustee makes default at the return term, and section 12, what shall be done if he appears at the same term.

But in this case the trustee appeared at the return term, and, under the provisions of section 12, the court ordered that the cause be continued, with leave to take trustee’s deposition in sixty days after the term; and the case finds that before this time had expired, the plaintiffs procured an extension of the time under section 13. Under this section there must be an application, and good 'cause must be shown under oath,— that is, the good cause must be shown by legal evidence. And within the terms of this extension, the trustee was summoned and appeared, and the hearing was continued by agreement of parties until August 26, at which time it is agreed that the trustee did not appear, and the magistrate made his entry accordingly. And at the next term of the court, plaintiffs move to have the trustee charged upon the ground that he avoided giving his deposition, which raises a question under section 14, which provides that if after summons or notice “ the trustee avoids so that his deposition cannot be taken by plaintiff, upon satisfactory proof thereof the trustee shall be adjudged chargeable as upon default.” Section 16 provides that “ no trustee shall be charged unless his deposition is taken as aforesaid and filed in the case, except as is otherwise provided in this chapter.”

The trustee’s deposition has not been taken and filed in this case, and therefore the trustee cannot be charged, unless it be under some special provision of the statute. Now, as we have seen, this trustee cannot be charged under section 9,11, or 12. It is in fact only under section 14 that he is here sought to be charged. Did the trustee avoid so that his deposition could not be taken, within the meaning of that section ? He must not only be charged with thus avoiding, but there must be satisfactory proof of that fact. It is not to be assumed without such proof; and when a fact is to be a subject of proof, evidence on both sides is admissible. In this case, we think the circumstances stated in the case would have been sufficient prima facie, but, upon the evidence submitted upon the other side, the court was satisfied that the trustee did not avoid within the meaning of the statute.

The court held, of course, that there must be an intentional avoidance for the purpose of preventing his deposition from being taken, and that, we think, was the evident meaning of the statute. The statute does not prescribe the kind or amount of proof that should be satisfactory; that was a question for the judge who tried the cause, and his finding upon that fact is conclusive. There being no satisfactory proof that the trustee avoided, he could not be charged under section 14; and by section 15 he could not be charged at all. What must be done in the case ? A new order must be made for taking his deposition, or he must be discharged. To discharge him under these circumstances would be doing great injustice to the plaintiffs, who have not been in any fault so far as appears; and they should not suffer on account of the accident, mistake, or misunderstanding of the trustee or his counsel, and the only way to prevent such injustice to the plaintiffs was to make the very order to which they here object. We cannot doubt that the court has the power, in the exercise of a sound discretion, to make the order that was made in this case.

JSxceptions overruled.