Richardson v. Greenhood

225 Mass. 608

• Court: Massachusetts Supreme Judicial Court
• Decided: January 13, 1917
• Status: Published

Opinion

Rugg, C. J.

This proceeding is entitled “Petition to dissolve attachment.” It was filed in the Superior Court on October 6, 1916. It alleges, so far as here material, that on October 5, 1916, Greenhood brought an action at law in contract with damages laid at $65,000, wherein the present petitioners were named as defendants, and attached their funds to a substantial amount in the hands of a trustee. It concludes with these words: “the petitioners say that said attachment is excessive and unreasonable and move that the matter may have a summary hearing and that said attachment be dissolved.” On October 21, 1916, after hearing, the attachment was dissolved by an order of the Superior Court. On November 7, 1916, Greenhood appealed from that order.

The petition for the dissolution of the attachment was brought uáQer R. L. c. 167, § 110, as amended by St. 1909, c. 190. That statute is designed to provide a speedy and summary hearing for relief against excessive or unreasonable attachments. But it is a proceeding incidental to the action in which the attachment has been made. Such an action begins on the date of the writ. Although in the case at bar the writ had not been entered in court when this petition was filed and under the law could not have been made returnable into the clerk’s office until the first Monday of November, 1916, nevertheless that action was pending and this petition was incidental to it. The order made by the Superior Court dissolving the attachment was an interlocutory order in that action. It was stated in oral argument at the bar that that writ had been entered in court and still was pending. There is nothing in the record about that subject. But, if that be assumed to be the fact, then no appeal from such an interlocutory order can be entered in this court and there is no jurisdiction to consider it. Weil v. Boston Elevated Railway, 216 Mass. 545, 546.

If it be assumed in favor of the appealing party that the writ in the original action never has been entered in court so that this order might be regarded as a final judgment, then there is no error of law apparent on the record. On that assumption the attachment was dissolved in the exercise of judicial discretion, and there is nothing to indicate that it was not exercised wisely.

If any question of law ever can be open upon such a petition as the present, the procedure (in the absence of a report by the presiding judge, John Hetherington & Sons, Ltd. v. William Firth Co. 212 Mass. 257) would be to file a bill of exceptions, which, if allowed, would await the stage of final disposition of the case, when it might be brought here. Brooks v. Shaw, 197 Mass. 376.

Appeal dismissed.