Barringer v. Northride

• Decision Date: 04 March 1929
• Citation: 266 Mass. 315,165 N.E. 400
• Parties: BARRINGER v. NORTHRIDE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 315

165 N.E. 400

BARRINGER

v.NORTHRIDE et al.

Supreme Judicial Court of Massachusetts, Worcester.

March 4, 1929.

Appeal from Superior Court, Worcester County; Lummus, Judge.

Suit by Edwin C. Barringer against George A. Northridge, begun by trustee writ, in which William H. Northride was named as trustee. A decree for plaintiff was entered, and from a subsequent decree correcting a mistake in a previous interlocutory decree, plaintiff appeals. Reversed.

Edwin C. Barringer, of Boston, pro se.

F. P. McKeon, of Worcester, for Northridge.

RUGG, C. J.

This suit, brought to settle complicated accounts between the plaintiff and defendant, was begun by trustee writ in common form. G. L. c. 214, § 7. William H. Northridge as executor was named as trustee and due service was made upon him. According to the record before us, the trustee does not seem to have appeared at the return day, nor to have filed an answer. The case was referred to a master. After the filing of his report, on June 26, 1926, orders for decrees were made in these words: ‘This suit was heard on the master's report. Let an interlocutory decree be prepared confirming the master's report; an interlocutory decree charging the trustee; and a final decree ordering the defendant to pay to the plaintiff $2,121.77 together with costs taxed in the sum of $25.45 and execution to issue for said sums against the defendnt and the trustee.’ On the same date decrees were entered in accordance with the orders. One confirmed the master's report. The one charging the trustee, entitled ‘Interlocutory Decree,’ was in these words: ‘This case came on to be heard at this sitting and it appearing that the trustee has failed to appear and answer, it is ordered, adjudged and decreed that said trustee be, and hereby is charged in the sum of $2,121.77, together with coststtaxed in the sum of $25.45.’ By the final decree the defendant was ordered to pay the plaintiff the sums specified in the orders. That decree concluded in these words: ‘That execution issue for said sums against the defendant and the trustee.’ The plaintiff appealed from the final decree. The decision on that appeal is reported in 258 Mass. 118, 154 N. E. 575. Final decree after rescript in accordance with that decision, whereby the amounts to be paid by the defendant to the plaintiff were changed, but otherwise in the same words as the earlier final decree, was filed on January 18, 1927, to be entered as of November 22, 1926. The trustee named in the writ on June 16, 1927, filed a motion entitled, ‘Motion to Correct Interlocutory Decree.’ In that motion were recited the order for decrees and all the decrees theretofore entered. It concluded in these words: ‘(7) That execution has issued thereon from the Superior Court; (8) that said Interlocutory Decree charging your petitioner in a specific sum was entered by inadvertance, mistake or clerical error and that there is error of law in said decree apparent upon the record; (9) that he never was examined by the court upon motion or otherwise with reference to being charged as having in his possession a specific sum of money or goods, effects and credits belonging to said defendant, and that he never in any way appeared in said action by himself or by attorney; wherefore your petitioner moves that the error in said Interlocutory Decree charging your petitioner in a specific sum may be corrected to conform to said Order for a Decree and to the fact, and that such other and further proceedings may be had as to determine in what specific sum your petitioner should be charged in the premises.’ After notice to the plaintiff, that motion was denied on June 24, 1927, by a judge different from the one by whom all the previous decrees had been entered. Another motion of precisely the same tenor was filed by the trustee on July 7, 1927. This motion was heard by still another judge. On September 14, 1927, he caused to be entered ‘Decree Correcting Clerical Error in Interlocutory Decree Filed June 26, 1926.’ In that decree it was adjudged that ‘so much of said Interlocutory Decree charging the Trustee filed June 26, 1926, as follows the word ‘charged,’ namely, the words ‘In the sum of $2,121.77 together with costs taxed in the sum of $25.45’ was inserted in said decree by mistake and clerical error, and did not conform to the actual decision of the court or the order for a decree filed June 26, 1926,' that those words be expunged from that decree and the words ‘as trustee’ inserted in place thereof, ‘so that the body of said decree shall conform to the actual decision of the court and the order for a decree, and shall read as follows, to wit: ‘This case case came on be heartd at this sitting, and it appearing that the trustee has failed to appear and answer, it is ordered, adjudged and decreed that said trustee be, and hereby is charged as trustee.’' The plaintiff's appeal from that decree brings the case here.

The trustee raises the point that the case is not rightly before us on appeal from an interlocutory decree. Hutchins v. Nickerson, 212 Mass. 118, 120, 98 N. E. 791;Siciliano v. Barbuto (Mass.) 164 N. E. 467. The decree of June 26, 1926, charging the trustee for specific amounts, was in form final. The alleged correction made by the decree here under review affected the rights of the plaintiff. If it stands, the trustee could not be charged except upon scire facias. MacAusland v. Fuller, 229 Mass. 316, 118 N. E. 655. While the proceeding by trustee process and the scire facias to determine the amount due ‘are part of one continued and connected course of proceedings,’ Universal Optical Corp. v. Globe Optical Co., 228 Mass. 84, 85, 116 N. E. 491, 492, yet we think that the decree appealed from in the circumstances here disclosed was sufficiently final, so far as the trustee was a party to the equity suit, to warrant present consideration of it. Reynolds v. Missouri, K. & T. R. Co., 224 Mass. 253, 254, 112 N. E. 859;Hanson v. Hanson, 258 Mass. 45, 47, 154 N. E. 525. The rights of the plaintiff against the trustee in trustee process, and his rights against the main defendant, are so far distinct and severable that a decision respecting each may be treated as final for the purpose of bringing proceedings to this court without violation of the rule of Hutchins v. Nickerson, supra; Reynolds v. Missouri, K. & T. R. Co., 224 Mass. 253, 254, 112 N. E. 859;Reynolds v. Missouri, K. & T. R. Co., 224 Mass. 379, 113 N. E. 413.

The question presented by the appeal is not whether the Superior Court has power to correct clerical errors in its records and decrees. Of that there can be...