Buchannan v. Meisner

Decision Date27 June 1932
Citation279 Mass. 457
PartiesJOHN M. BUCHANNAN v. HENRY S. MEISNER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

March 11, 1932.

Present: RUGG, C.

J., CROSBY, WAIT & FIELD, JJ.

Practice, Civil Appeal: failure to prosecute seasonably; Proceedings in district court. District Court, Appellate Division.

An appellate division of a district court under G.L.c. 231, Section 108 in the amended form appearing in St. 1931, c. 426, Section 116, is not a new court but acts for the time being as another department, section or division of the court whose decision is under review.

The judges of an appellate division have jurisdiction to consider and to pass upon a motion to dismiss, for failure to meet the requirements of

G.L.c. 231, Section 135, as amended by St. 1929, c. 265, Section 1; St. 1931, c 219, Section 1, an appeal from an order of the division dismissing a report by a trial judge of a district court, and a motion by the appellant to extend the time within which such requirements must be met; and appeals from orders made upon such motions bring to this court the propriety thereof.

The judges of an appellate division of a district court have no power to grant a motion to extend the time within which, under the requirements of the second paragraph of Section 135 of G.L.c. 231, in the amended form appearing in St. 1931, c. 219, Section 1, the estimated expense of an appeal from action of such division must be paid to the clerk of the

District Court, if such motion is not presented until after expiration of the time for such payment limited by the statute.

TORT. Writ in the First District Court of Eastern Middlesex dated December 17, 1929.

In the District Court, the action was heard by Brooks, J., who found for the plaintiff in the sum of $8,500 and reported the action to the Appellate Division for the Northern District. Proceedings therein and appeals from orders made upon certain motions there presented by the defendant are described in the opinion.

R. Donovan, for the defendant. P.M. Foss, for the plaintiff.

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 . Demers v. Scaramella, 252 Mass. 430 . Weil v. Boston Elevated Railway, 216 Mass. 545 . Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 253 .

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. 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, Section 135, as most recently amended in its second paragraph by St. 1931, c. 219, and c. 426, Section 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...

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3 cases
  • Buchannan v. Meisner
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 1, 1932
  • Rich v. Weeks
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 28, 1932
  • Rich v. Weeks
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 27, 1932

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