Baker v. Blood

• Decision Date: 24 June 1880
• Citation: Baker v. Blood, 128 Mass. 543 (Mass. 1880)
• Court: Supreme Judicial Court of Massachusetts
• Parties: Mary E. Baker & another v. Edward J. Blood

128 Mass. 543

Mary E. Baker & another v. Edward J. Blood

Supreme Court of Massachusetts

June 24, 1880

Argued September 30, 1879

Worcester. Appeal by Edward J. Blood from a decree of the Probate Court removing him from the office of guardian of the petitioners. Colt, J., affirmed the decree; and the guardian alleged exceptions, which appear in the opinion.

Exceptions sustained.

J. N Marshall, for the guardian.

C. R Johnson, for the petitioners.

Colt J. Endicolt & Lord, JJ., absent.

OPINION

Colt, J.

The citation issued by the Probate Court, upon a petition for the removal of the appellant from his office as guardian, was in this case ordered to be served upon the appellant personally, or by publication in a newspaper three weeks successively, the last publication to be one day, instead of two days, at least, before the return day. It was served by publication, and the last publication was in fact but one day before the court at which the decree for removal was passed. The appellant was not present, and had no actual notice or knowledge of the proceedings. In support of his appeal, he contends that the Probate Court had no jurisdiction, because the order of notice in form and in the service of it failed to comply with an established rule of court requiring the last publication to be two days at least before the return day of the citation.

By the Gen. Sts. c. 117, among other provisions regulating the practice and proceedings in Probate Courts, it is required in § 19 that the several judges of probate shall, from time to time, make rules for regulating the practice and conducting the business of their courts in all cases not expressly provided for by law; and shall return a statement of their rules and course of proceedings to this court, as soon as conveniently may be thereafter. The power to make other and further rules from time to time is also given to this court, for the declared purpose of securing regularity and uniformity in the proceedings. Under the provisions of this section, a committee of the judges of the Probate Courts having prepared forms for proceedings in those courts, upon one general plan and system, and, the same having been examined and approved by this court, it was ordered on January 15, 1862, in order to secure regularity and uniformity in the proceedings of the Probate Courts in the several counties, that they be filed in this court, and recognized as standard forms to be adopted and used in all the Probate Courts of this Commonwealth. ^[*] Among the forms so approved and established is the form for citations upon petitions and proceedings pending, by which, when service is by publication, it is required to be once a week for three weeks successively, "the last publication to be two days at least before said court;" and we are of opinion that the form of the citation, and the mode of its service thus fixed, cannot in any material respect be departed from without destroying the validity of all proceedings founded thereon. It has become binding by rule of court, and by § 20 of the same chapter of the General Statutes, the power of the judges to frame forms for process "in conformity with the principles of law and the usual course of proceedings in this State" is expressly limited to cases when no form "is prescribed by statute or the rules of the court." A rule of court thus established has the force of law, and is equally binding upon the parties and the court. It cannot be dispensed with to suit the circumstances of any particular case.

Thus when a plea in abatement was by mistake not offered until the fifth day of the term, and was then by leave of a judge of the Court of Common Pleas filed as of the fourth day, the filing was held by this court to have been improper, because in contravention of the rules of that court. Thompson v. Hatch, 3 Pick. 512. The judges of that court were held in another case not to be the final and exclusive judges of the construction and legal effect of their own rules, but their decisions respecting them are matter of law, and subject to the revision of this court. Rathbone v. Rathbone, 4 Pick. 89. In ...