Burlingame v. Bartlett

• Decision Date: 22 June 1894
• Parties: BURLINGAME v. BARTLETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 593

37 N.E. 748

BURLINGAME v. BARTLETT et al.

Supreme Judicial Court of Massachusetts, Hampden.

June 22, 1894

COUNSEL

E.H. Lathrop, for appellant.

Jas Bliss, for appellees.

OPINION

FIELD C.J.

The plaintiff filed a bill in equity in the superior court for the county of Hampden, to which the defendants demurred. The bill was afterwards amended, and the defendants demurred to the bill, as amended; and on November 9, 1893, the demurrer was sustained, and the bill, as amended, was dismissed, with costs, and on the same day the plaintiff appealed,--all of which appears in the docket entries of the superior court. The plaintiff did not enter this appeal in the supreme judicial court, whereupon, on April 2d, the defendants made application to the superior court for an execution for costs. The plaintiff thereupon filed her petition in the supreme judicial court for leave to enter her appeal, under Pub.St c. 150, § 17.

Pub.St c. 150, §§ 9, 16, 17, certainly imply that appeals or exceptions shall be entered in the supreme judicial court, but it is argued that these sections relate only to appeals and exceptions in actions at law. See Pub.St. c. 152, §§ 10, 12, 16. Pub.St. c. 150, § 16, was amended by St.1888, c. 94. Appeals from a final decree in equity are regulated by Pub.St. c. 151, § 13, and this section was made to apply to appeals from final decrees in equity in the superior court after that court was given jurisdiction in equity. St.1883, c. 223, § 2. Pub.St. c. 153, § 15, is as follows: "Copies and papers relating to a question of law arising in either court upon appeal, by bill of exception, reserved case, or otherwise, shall be prepared by the clerk of the court, and shall thereupon be transmitted to and entered in the law docket of the supreme judicial court for the proper county as soon as may be after such question of law is reserved and duly made a matter of record in the court where the action is pending; but the entry thereof shall not transfer the case, but only the question to be determined." See Id. § 16. A distinction between appeals in equity and appeals and exceptions in actions at law, under St.1888, c. 94, was taken in Gray v. Gray, 150 Mass. 56, 25 N.E. 91, and Ingalls v. Ingalls, 150 Mass. 57, 25 N.E. 92. Appeals in equity must be claimed within 30 days after the entry of the decree; and such a claim must be entered on the clerk's docket, which must mean the clerk's docket where the appeal is claimed. Pub.St. c. 151, § 13. And it is provided in this section that: "Thereupon all proceedings under such decree shall be stayed, and such appeal shall thereupon be pending before the full court, who shall hear and determine the same, and affirm, reverse, or modify the decree appealed from, as circumstances may require. On the reversal of a final decree, the court may remand the cause, with such directions as are necessary and proper, to a single justice, further to proceed therein, or may refer it to a master, or take such other order respecting future proceedings therein as equity requires, and as shall be most conducive to the just and speedy determination of the case." Id. § 14, is as follows: "The clerk of the court for the commonwealth shall enter appeals in equity and probate matters on a separate docket." See Id. §§ 15, 16; Id. c. 154, § 39; Id. c. 156, §§ 7-10; Id. c. 159, §§ 3, 4. In the removal of a suit from one court to another, an entry of the papers is generally required in the court to which the suit is removed. Pub.St. c. 152, § 7; Id. c. 154, §§ 40, 41; Id. c. 161, § 12; Id. c. 178, § 46. See St.1883, c. 223, § 8. From the nature of an appeal from one court to another, whether the appeal carries the whole case to the appellate court, or only certain questions in the case, we think that there must be something in the nature of an entry of the case, or of the questions, in the appellate court. In the present case the supreme judicial court for the county of Hampden could not know that an appeal had been taken, unless there was an entry on the docket of that court; and an entry on the docket of the superior court that an appeal was claimed was not equivalent to an entry on the docket of the supreme judicial court. The need of such an entry on the clerk's docket of the supreme judicial court for the commonwealth, when the appeal is to that court, is apparent. Pub.St. c. 150, § 30; Id. c. 153, § 16. Although appeals in equity must be taken within 30 days after the decree, there is no provision that such appeals must be entered in the supreme judicial court within the 30 days. The only statutory provision on this subject is Pub.St. c. 153, § 15; and we think that this section must be held to apply to...