Buchannan v. Meisner

• Decision Date: 01 July 1932
• Citation: 181 N.E. 742,279 Mass. 457
• Parties: BUCHANNAN v. MEISNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

279 Mass. 457

181 N.E. 742

BUCHANNAN

v.MEISNER.

Supreme Judicial Court of Massachusetts, Middlesex.

July 1, 1932.

Appeal from First District Court of East Middlesex, Northern District.

Action by John M. Buchannan against Henry S. Meisner. From an order of the appellate division dismissing report after judgment for plaintiff, defendant appeals.

Decision and order affirmed.

R. Donovan, of Boston, for appellant.

P. M. Foss, of Boston, for appellee.

RUGG, C. J.

This action at law was tried on its merits in a district court. The finding was for the plaintiff. The case then came before the appellate division and it was ordered that the report be dismissed. The defendant claimed an appeal. The clerk of the court gave to counsel for the defendant notice in writing under date of June 12, 1931, of the amount of the estimate of the expense of preparation and transmission of the necessary papers and copies of papers for entry of the case in the full court. The defendant did not within the twenty days thereafter specified by the governing statute (to be quoted later) pay to the clerk the amount of the estimate, but did make such payment five days after the expiration of that time. On July 16, 1931, the plaintiff filed a motion to vacate the appeal and the defendant a motion for an extension of time in which to pay the amount of the estimated expense. These two motions were heard and considered and disposed of by a single ‘Decision and Order’ whereby the appellate division ordered that the plaintiff's motion to dismiss the appeal of the defendant be allowed and that the defendant's motion to extend time for payment of the estimated expense be denied. Thereupon the defendant appealed from the action of the appellate division allowing the plaintiff's motion to dismiss the defendant's appeal. He did not appeal from its action denying his motion to extend the time for paying the estimated expense.

The action of the appellate division on each motion was the equivalent of a final decision against the defendant on the whole subject matter involved in the litigation and terminated the controversy, so that, if its order respecting either order were affirmed, the district court would have nothing to do but to execute the decision already rendered. The case was ready for final disposition on either order. So far as concerns finality of decision, the defendant might have appealed from its action on either or both motions. Real Property Co., Inc., v. Pitt, 230 Mass. 526, 120 N. E. 141;Demers v. Scaramella, 252 Mass. 430, 147 N. E. 894;Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343;Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 253, 112 N. E. 859.

The defendant has unnecessarily jeopardized his rights by the narrow nature of his appeal. It would have been simple to appeal from the decision and order as a whole, or to appeal from the order respecting each motion. He has undertaken to limit the scope of his appeal by confining it to the granting of the plaintiff's motion to dismiss the defendant's appeal. See Simmons v. Fish, 210 Mass. 563, 572, 97 N. E. 102, Ann. Cas. 1912D, 588. It is apparent that the appellate division granted that motion as a necessary consequence of its decision touching the defendant's motion to extend time for paying the required amount to the clerk. The two motions were dealt with in a single opinion devoted almost entirely to the discussion of the defendant's motion. The two motions were disposed of in a single decision and order. The defendant has substantially no standing if his appeal is construed literally. For these reasons, though with hesitation, the case is considered in all its aspects.

A preliminary question arises as to the jurisdiction of the appellate division to consider the motions. It is provided by G. L. c. 231, § 135, as most recently amended in its second paragraph by St. 1931, c, 219, and chapter 426, § 301, that the ‘court in which the case is pending, or any justice or judge thereof, may, for cause shown after hearing, extend the time for doing any of the acts required by this paragraph.’ One of these ‘acts' is the payment to the clerk of the ‘estimated expense’ of preparation of papers. The appellate division is composed of judges of duly established district courts; they are designated to perform a special and a comparatively recently created judicial duty under conditions prescribed by the Legislature. The establishment of appellate divisions was a plan adopted by the General Court to relieve the congestion of other courts and to provide for the expeditious disposition of litigation in a way devoid of complication, easily accessible to the people, and at much less cost to litigants and the public treasury than the method previously existing. The plan made use of judges already appointed and provided for their designation to new duties to the end that the administration of justice might be simplified, might not be delayed, and might be more efficient. Judges already in the public service were utilized for additional judicial work in courts already erected and constituted within the several territorial subdivisions of the state thereby created. No salary is paid to the judges as members of the appellate division except that a special additional daily stipend is paid to a judge acting in the appellate division of a district court other than the district court of which he is judge. The appellate division is not a new court. It has no clerk. It has no seal. It assembles at intervals to rehear such matters of law arising in civil causes in district courts as may properly be brought before it. It acts for the time being as another...