Beal v. Lynch

• Citation: 136 N.E. 172,242 Mass. 65
• Parties: BEAL et al. v. LYNCH.
• Decision Date: 01 July 1922
• Court: United States State Supreme Judicial Court of Massachusetts

242 Mass. 65

136 N.E. 172

BEAL et al.

v.LYNCH.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1922.

Report from Superior Court, Suffolk County; Frederick Lawton, Judge.

Suit by Benjamin F. Beal and another against Charles J. Lynch. Reported from the superior court after the overruling of objections to the jurisdiction of the court, interposed by defendant's administrator. Administrator discharged.

On November 26, 1920, plaintiff filed a suggestion of defendant's death and a motion that his administrator be summoned to appear and defend the action. The motion was allowed, and supoena issued and served on the administrator. The administrator thereafter appeared specially and filed objections to the jurisdiction on the grounds: (1) That the suit was among the suits covered by a general order of the court relating to the dismissal of suits then pending on the docket, and that no motion and affidavit was filed within the time permitted by such order; and (2) that the administrator caused notice of his appointment to be duly published, and that upwards of three years had elapsed from the date of his appointment, and the court was therefore without authority to cause citation to issue against him. The objections were overruled, and the case reported on the pleadings, the general order of dismissal, the suggestion of death and motion to summon the administrator, the order of the court and process issued in accordance therewith, the objections to the jurisdiction, and the agreed statement of facts and questions of law arising thereon, for such decree as justice and equity required.Fred L. Norton, of Boston, for plaintiffs.

William R. Buckminster and M. B. Lynch, both of Boston, for defendant.

RUGG, C. J.

This suit in equity was commenced in October, 1912. Issue was joined and the case referred to a master, whose death before making report was suggested of record on May 4, 1915. The original defendant died on May 5, 1917, and administrator of his estate was appointed on May 24, 1917, who thereafter gave due notice of his appointment, affidavit thereof being filed on August 27, 1920. So far as shown by the record, no action appears to have been taken after May 4, 1915, until November 26, 1920, when the plaintiff filed a suggestion of the death of the defendant and motion that his administrator be summoned. A citation was issued returnable on the first Monday of January, 1921. In the meantime, on September 20, 1920, a general order of the superior court was issued to the effect in substance that notice be sent on or before December 1, 1920, to counsel of record in all cases wherein no action had been taken for 2 years preceding October 1, 1920, that such case--

‘will be dismissed on the 18th day of December following, unless a motion that such case be allowed to remain on the docket setting out fully cause therefor, with affidavit in support thereof, shall be filed on or before the 15th day of said December, the party filing such motion and affidavit shall on the same day give notice thereof to the adverse party as provided in common-law rule 28. Proof of such notice, if not accepted, shall be shown by affidavit filed before said 18th day of December. If no such motion and affidavit, with proof of notice thereof, are filed, the case without further notice or hearing shall on said 18th day of December be dismissed and entry thereof made by the clerk on the docket under each case.’

No compliance with this order was made by the plaintiff unless the suggestion of death and motion filed as stated on November 26, 1920, are to be so treated.

The administrator of the defendant appeared specially on February 1, 1921, and objected to the jurisdiction of the court. It is agreed that the estate of the defendant has been fully administered except that settlement of balance of inheritance tax remains to be made and that no account has been filed in the probate court, and that the estate has not been represented insolvent.

No final decree or docket entry of dismissal appears to have been made in the case. Churchill v. Churchill, 239 Mass. 443, 132 N. E. 185. See Loonie v. Wilson, 233 Mass. 420, 124 N. E. 272.

The general order of September 20, 1920, for dismissal on December 18, 1920, while operative as to all cases within its purview(Farnham v. Lenox Motor Car Co., 229 Mass. 478, 481, 118 N. E. 874;Feldman v. Feldman, 230 Mass. 330, 119 N. E. 681), did not remove cases otherwise within its sweep from the general jurisdiction of the court to deal with them as justice under the law might require. The case at bar was pending in the superior court. Any judge acting within his jurisdiction might make an order concerning the case which would by its...