Bldg. Inspector of City of Salem v. Gauthier

• Citation: 156 N.E. 684,259 Mass. 615
• Parties: BUILDING INSPECTOR OF CITY OF SALEM v. GAUTHIER et al.
• Decision Date: 21 May 1927
• Court: United States State Supreme Judicial Court of Massachusetts

259 Mass. 615

156 N.E. 684

BUILDING INSPECTOR OF CITY OF SALEM

v.GAUTHIER et al.

Supreme Judicial Court of Massachusetts, Essex.

May 21, 1927.

Appeal from Superior Court, Essex County; Robert F. Raymond, Judge.

Bill by the Building Inspector of the City of Salem against George Gauthier and others. Decree for plaintiff, and defendants claimed appeal. Plaintiff's motion to dismiss appeal was granted, and defendants appeal. Order dismissing appeal affirmed.

G. C. Richards, of Salem, for appellants.

W. A. Pew, of Salem, for appellee.

RUGG, C. J.

This case was tried on September 30, 1924, and a final decree was entered on that date. The defendants claimed an appeal on October 2, 1924. Since the latter date the defendants have done nothing to enter or render effective their appeal. On July 21, 1925, and again on February 12, 1926, the plaintiff moved to dismiss the appeal because not entered in this court. On July 12, 1926, the motion to dismiss was granted. The defendants appealed. The judge made report of the material facts relevant to the appeal from the order dismissing the appeal. Those facts are that on October 1, 1924, the defendants by letter asked the judge to report ‘the material facts found’ by him and ‘all the material evidence in the case.’ The judge ‘never made nor entered the report of facts so requested, nor any finding or report of facts.’ At a subsequent sitting counsel for both parties appeared before the judge with a report which counsel for the defendants desired signed in the form drawn and which the counsel for the plaintiff desired changed. The judge took the papers, but did not sign the report. The matter was not presented to the judge again until July 12, 1926, when he granted the motion to dismiss without acting upon the draft report, which was again urged on his attention.

The request of the defendants made to the judge was not in conformity to G. L. c. 214, § 23. By that section the trial judge in equity is required on request seasonably made to file a report of the material facts found by him, but he is not required and cannot be compelled to report ‘all the material evidence in the case.’ If a party in an equity suit desires the evidence heard at the trial presented to the full court, he must pursue the statutory provisions in that behalf. But he cannot require the judge to make report of it. G. L. c. 214, § 24; Romanausky v. Skutulas (Mass.) 154 N. E. 856.

Assuming, without deciding, that the judge was empowered under the law to comply with the request of the defendants (G. L. c. 214, § 31), his failure to do so affords no excuse for their delay in entering their appeal. The report of material facts which no seasonable request the trial judge is required to make under G. L. c. 214, § 23, is not a new or additional proceeding in the case after it has reached its termination by a final decree, but ‘is in the nature of an extension of the record in the form of a statement in writing of that which was in the mind of the judge when his decision was made.’ Worcester v. Lakeside Manuf. Co., 174 Mass. 299, 300, 54 N. E. 833, 834. If the defendants had asked simply for a...