Barnes v. Barnes

• Decision Date: 27 June 1935
• Citation: 196 N.E. 917,291 Mass. 383
• Parties: BARNES et al. v. BARNES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

291 Mass. 383

196 N.E. 917

BARNES et al. v. BARNES et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 27, 1935

Report from Superior Court, Middlesex County; Walsh, Judge.

Suit by Charles C. Barnes and Katherine F. Barnes against Aloysia M. Barnes and others in which William H. Eames, as administrator, was substituted on death of plaintiff Katherine F. Barnes. On report from the superior court following the refusal of the trial judge to order the clerk to accept for filing an appeal from the final decree.

Acceptance of appeal ordered.

W. J Killion and T. W. Lawless, both of Boston, for plaintiffs.

T. F. Vahey, of Watertown, for defendants.

RUGG Chief Justice.

The plaintiffs in this suit in equity seek a reconveyance of real estate formerly owned by Katherine F. Barnes, one of the plaintiffs. It was heard by the trial judge on November 25, 1933, and a report of facts, rulings, and an order for a decree dismissing the bill were entered on February 6, 1934. These are not printed in the record and are not before us. The bill and answer are not before us. The plaintiff Katherine F. Barnes died on March 9, 1934. The matter came before the trial judge on several occasions between March 9, 1934, and September 7, 1934, but no suggestion of the death of Katherine F. Barnes was filed, although there was mention of her decease on one occasion. On September 7, 1934, a decree was entered dismissing the bill in accordance with the order of February 6, 1934. On September 11, 1934, the counsel of record at that time for the plaintiffs filed a claim of appeal from the final decree entered on September 7, 1934, but took no steps to perfect the appeal; that claim of appeal therefore failed. On October 25, 1934, present counsel of record for the plaintiffs entered their appearance and filed a suggestion of death of the plaintiff Katherine F. Barnes, together with a motion that William H. Eames, as administrator of her estate, be permitted to prosecute the case; and also filed a petition to vacate the final decree. On December 22, 1934, the motion of Eames as administrator was allowed, but a motion of the defendants filed on November 5, 1934, to dismiss the plaintiffs' appeal was not acted upon. On December 22, 1934, the trial judge entered an order that the final decree of September 7, 1934, take effect as of March 1, 1934. On January 10, 1935, counsel for the plaintiffs, apparently representing both the surviving plaintiff and the administrator of the deceased plaintiff, offered for filing an appeal from the final decree, which the clerk refused to accept and which the trial judge refused to order him to accept. The single question reported for determination is whether on these facts the appeal from the final decree sought to be entered on January 10, 1935, should have been accepted for filing on that day.

The form of the appeal was that the plaintiffs ‘ appeal from the final decree of September 7, 1934 ‘ entered as of March 1, 1934.’ ' The docket entry under date of January 10, 1935, is ‘ Plaintiffs' appeal from order entered Dec. 22, 1934.’ It is not necessary to analyze nicely the differences which may exist between these forms of appeal. In any event, whatever rights of appeal were open from the action of the court were seasonably claimed.

The decree dismissing the bill entered on September 7, 1934, nearly six months after the death of the plaintiff and before the appointment of any administrator of her estate, could not rightly have been entered as of that date because by her death in the previous March further proceedings were suspended. Under the former equity practice a bill of review or a supplemental bill would have been necessary. Pingree v. Coffin, 12 Gray, 288, 317; Malden & Melrose Gas Light Co. v. Chandler, 220 Mass. 1, 9, 107 N.E. 426, Ann.Cas. 1917A, 145. That is no longer necessary; a simple amendment is all that is now required. Rules 16, 17 of the Superior Court (1932). The representative of the deceased plaintiff properly became a party on December 22, 1934.

The authority of the attorney for the deceased plaintiff ceased with her death. If the appeal claimed in behalf of the surviving plaintiff and of the deceased plaintiff on September 11, 1934, from the decree of September 7, 1934, had been prosecuted and argued by an attorney of this court, he would have been heard as amicus curiae in behalf of the deceased plaintiff, or her estate, and the merits of the case would have been considered. Currier v. Lowell, 16 Pick. 170, 173; Kelley v. Riley, 106 Mass. 339, 8 Am.Rep. 339; Tapley v. Martin, 116 Mass. 275; Fenelon v. Fenelon, 244 Mass. 14, 16, 138 N.E. 334. However, there can be no technical representation of the estate of the deceased party to litigation except by the appearance of an administrator or executor. Failure to prosecute the appeal taken on September 11, 1934, cannot in justice and equity affect the rights of the estate of the deceased plaintiff.

The case had been fully heard and report of facts, rulings and an order for decree had been made before her death. In such circumstances a decree nunc pro tunc as of a date prior to her death commonly will be entered. Perkins v. Perkins, 225 Mass. 392, 396, 397, 114 N.E. 713, and cases there reviewed. Fenelon v. Fenelon, 244 Mass. 14, 16, 17, 138 N.E. 334; McGrath v. C. T. Sherer Co. (Mass.) 195 N.E. 913. See G. L. (Ter. Ed.) c. 235, § 4. On this aspect of the case, the action of the trial judge in ordering that the decree, in form entered on September 7, 1934, be entered and take effect as of March 1, 1934, which was before the death of the plaintiff, was within his power and in accordance with correct practice. It was in substance and effect the entry of a decree nunc pro tunc.

In order to protect the rights secured by the trial and decision which occurred before the death of the plaintiff, the date of the final decree will be March 1, 1934. The decisive action of the court was in truth taken on December 22, 1934, when the order for the nunc pro tunc decree was made and a valid final decree first was entered. The right of the administrator of the estate of the deceased plaintiff to appeal arose for the first time on that date, when the operative judicial action as to final decree was in fact made, when the final decree was actually entered, and when the nunc pro tunc order took effect. The administrator of the deceased plaintiff had a right to appeal from the final decree. Attorney General v. Barbour, 121 Mass. 568 573; Humphrey's Case, 226 Mass. 143, 145, 115 N.E. 253; G. L. (Ter. Ed.) c. 214, § 19. He cannot be deprived of that right simply because the final decree was dated back to a day when the time from that day allowed by law for claiming and prosecuting an appeal had long expired. His substantial right to appeal cannot be frustrated in that way. The administrator of the deceased plaintiff had no opportunity to appeal until December 22, 1934, when the order for the nunc pro tunc entry of the final...