Bass River Sav. Bank v. Inckerson

• Citation: 302 Mass. 235,19 N.E.2d 56
• Parties: BASS RIVER SAV. BANK v. INCKERSON et al.
• Decision Date: 01 February 1939
• Court: United States State Supreme Judicial Court of Massachusetts

302 Mass. 235

19 N.E.2d 56

BASS RIVER SAV. BANK

v.INCKERSON et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Feb. 1, 1939.

Partition action by the Bass River Savings Bank against Bessie F. Nickerson and others. From the decree entered, the named defendant appealed and the petitioner filed a motion to dismiss the appeal.

Motion denied.Appeal from Probate Court, Barnstable County; C. C. Campbell, judge.

P. M. Swift, of Hyannis, for petitioner.

C. G. Willard, of Brockton, for respondent Nickerson.

FIELD, Chief Justice.

This is a petition for partition brought in the Probate Court for the County of Barnstable. From a decree therein entered on Ocotber 4, 1938, Bessie F. Nickerson, one of the respondents, appealed. Her appeal has been entered in this court. The case comes before us on the motion of the petitioner to dismiss this appeal for failure of the appellant to comply with the requirement of G.L.(Ter.Ed.) c. 231, § 135, that such appellant ‘within ten days after the case becomes ripe for final preparation and printing’ of the ‘necessary papers' for the completion of the appeal ‘give to the * * * register * * * of the court in which the case is pending * * * an order in writing for the preparation of such papers and copies of papers for transmission to the full court.’ Such a failure, if established (see Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 472, 150 N.E. 223;Kolda v. National Ban Franklin Fire Ins. Co., 290 Mass. 182, 184, 195 N.E. 331), would be fatal to the appeal and require that it be dismissed. Cherry v. Auger, Mass., 15 N.E.2d 203. See also Niosi v. Leveroni, 274 Mass. 115, 174 N.E. 228;McCarty v. Boyden, 275 Mass. 91, 175 N.E. 292;Martell v. Moffatt, 276 Mass. 174, 177 N.E. 102;Charbonneau v. Guillet, 278 Mass. 153, 179 N.E. 607.

We have before us the record of the case entered in this court together with certain affidavits, including an affidavit of the register of probate with a copy of the decket entries attached. These facts appear: The appellant, on October 7, 1938, filed a claim of appeal and a request for a report of material facts. A letter dated October 13, 1938, and filed October 17, 1938, from counsel for the appellant to the register includes the following: ‘As soon as the record is ripe, will you kindly send me an estimate of the costs of printing for the supreme judicial court.’ On October 31, 1938, a report of material facts was filed. In a letter dated November 4, 1938, the register wrote counsel for the appellant as follows: ‘My estimate for the cost of the appeal of your clients in the partition proceeding of Bass River Savings Bank v. Bessie F. Nickerson et al. is $45.00, upon receipt of which sum I will order the printing.’ A letter from said counsel to the register, dated November 7, 1938, stated: ‘I herewith enclose check for printing in accordance with your estimate contained in your letter under date of November 4.’ A check for this amount was enclosed. Upon receipt of this letter and check the register-as he states in his affidavit-‘duly ordered the preparation of the necessary papers and copies of papers for transmission to the Supreme Judicial Court.’

The report of material facts constituted an essnetial part of the ‘necessary papers' for the completion of the appeal. Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 473, 150 N.E. 223;Martell v. Moffatt, 276 Mass. 174, 177, 177 N.E. 102. Though a different rule was applicable under the previous statute (see Dondis v. Lash, 277 Mass. 477, 480, 481, 178 N.E. 624, and cases cited), under the present statute the time for ordering the preparation of the papers did not expire until ten days after the report of material facts was filed-October 31, 1938-that is, on November 10, 1938. See Dondis v. Lash, 277 Mass. 477, 481, 178 N.E. 624.

The question for decision, therefore, is whether on the facts before us it appears that no ‘order in writing’ for the preparation of papers was given on or before November 10, 1938.

The letter filed on October 17, 1938, was not such an ‘order.’ It is merely a request for information as to the estimated cost of the preparation of the papers and did not expressly or by implication direct the register to prepare the papers, as an ‘order in writing’ conforming to the statutory requirement would do. See Cherry v. Auger, Mass., 15 N.E.2d 203.

However, the register...