Check v. Kaplan

• Citation: 280 Mass. 170,182 N.E. 305
• Parties: CHECK v. KAPLAN.
• Decision Date: 13 September 1932
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 170

182 N.E. 305

CHECK

v.KAPLAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 13, 1932.

Appeals from Superior Court, Middlesex County; Broadhurst, Judge.

Action by Max Check against Annie D. Kaplan. From orders denying a petition of Edith M. Check for leave to intervene and her subsequent petition to be substituted as plaintiff in place of plaintiff, her husband, she appeals. From an order denying petition of Israel N. Samuels for attorney's lien for fees and disbursements, he appeals. From an interlocutory decree permitting Morris Silverman to intervene, and from a subsequent interlocutory decree affording intervener affirmative relief, plaintiff appeals.

Interlocutory decrees permitting intervention and affording affirmative relief reversed and rendered. The other appeals dismissed.I. N. Samuels, of Boston, for Max M. Check and others.

J. H. Cinamon, of Boston, for intervening petitioner.

RUGG, C. J.

The first paper printed in this record is entitled ‘Findings, Rulings and Order on Petition of Israel N. Samuels for Lien for Counsel Fees and Disbursements.’ It is signed by a judge of the superior court. It therein is stated among other findings that the present proceeding was begun in a district court as an action at law on a note, was removed on motion of the defendant to the superior court, that thereafter but before judgment a motion was filed in the case for equitable relief under St. 1925, c. 170, and that thus Morris Kaplan, husband of the defendant, was brought in as a party. The amount due from the defendant to the plaintiff was fixed at the amount claimed in his declaration, though the case had not gone to judgment because of the equitable proceeding. By report of a master it had been found that there was in the hands of Morris Kaplan $904.08 belonging to the defendant, Annie D. Kaplan, available for satisfaction of the claim of the plaintiff and the claim of his wife, who is said to have instituted a separate action for the collection of a claim due her from the defendant, Annie D. Kaplan, the amount of which had also been fixed. Thereafter, on September 8, 1931, a decree was entered directing Morris Kaplan to pay to the plaintiff said sum of $904.08 to be used by him in satisfying ‘the amount hitherto determinedto be due him from the principal defendant,’ viz., $535, with interest and costs, and to pay the balance to the wife of the plaintiff in part satisfaction of her claim against Annie D. Kaplan ‘hitherto determined to be $602.55, with interest and costs.’ Thereafter, one Morris Silverman was allowed to intervene for the purpose of collecting an unsatisfied judgment held by him against the plaintiff out of the sum to be paid to the plaintiff by Morris Kaplan as amount due from his wife to the plaintiff, and decree was entered ordering that sum paid to the clerk of the superior court for the benefit of the intervenor.

Thereafter, Edith M. Check, wife of the plaintiff, filed a petition to intervene. She also filed a petition to be substituted as plaintiff in place of her husband. Israel N. Samuels filed a petition in the case alleging that he had been attorney for the ‘plaintiffs,’ apparently meaning both the present plaintiff and his wife, and had performed services and made disbursements ‘in these cases,’ and that he is entitled to a lien ‘for fees and disbursements.’ Each of these three petitions was denied and each of those three petitioners has appealed.

The record is in a confused state. This appears to be an action at law in which Max Check alone is plaintiff. Whether the motions of Edith M. Check, or either of them, ought to have been granted to the end that she might become a party, making every assumption in her favor of which the record is susceptible, was at best a matter in the sound discretion of the trial judge. No evidence concerning them is reported. No ruling of law was requested, denied, or made by the trial judge, so far as shown on the record. Manifestly, no question of law is presented on the appeals by Edith M. Check. They must be dismissed.

The motion of Israel N. Samuels was heard on unreported evidence and denied. The facts were found against him. It was especially found that he did not bring himself within the principle of law declared in Delval v. Gagnon, 213 Mass. 203, 99 N. E. 1095. That principle is that as between the parties a right in the nature of a lien on an identified and particular fund may be created which will in appropriate circumstances be enforced in equity. Whether the petitioner established a right under that principle was a pure question of fact upon which the decision of the trial judge must stand as final. First Baptist Society in Brookfield v. Dexter, 193 Mass. 187, 189, 79 N. E. 342;Granlund v. Saraf, 263 Mass. 76, 79, 160 N. E. 408.

The ruling that that petitioner had no lien under G. L. c. 221, § 50, was right. It is expressly found that the case has not gone to judgment. Of course no execution has issued. Therefore there could be no lien. In any event this petitioner, in the absence of special agreement as to lien, would be entitled under said section 50 only to the attorney fee allowed by G. L. c. 261, § 23, as amended by St. 1924, c. 108, § 1. Blake v. Corcoran, 211 Mass. 406, 97 N. E. 1002;Dwyer v. Ells, 208 Mass. 195, 94 N. E. 286,21 Ann. Cas. 1042;Goldman v. Noxon Chemical Products Co., 274 Mass. 526, 175 N. E. 67;Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 261, 262, 147 N. E. 878. There is no merit in any complaint against this action of the trial judge.

Mr. Samuels has appealed from the denial of his petition for counsel fees and ‘from all the orders findings and rulings' in the statement of findings, rulings and order of the trial judge preceding his final conclusion that the ‘petition is denied.’ All this is irregular. Since this appears to be an action at law, the order of the court was final disposition of his petition or motion. It was decisive against his contention, but it was not founded on any ‘matter of law apparent on the record.’ G. L. c. 231, § 96, as amended by St. 1928, c. 306, § 2; Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 134, 137 N. E. 169. It depended on facts found by the trial judge. Those findings are no part of the record. Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Powdrell v. Du Bois, 274 Mass. 106, 174 N. E. 220; St. 1929, c. 265, § 1. Therefore, treating the appeal as arising in an action at law, there is nothing for the consideration of the court.

[10] If this appeal be treated as arising in a suit in equity, no different conclusion in substance can be reached. The appeal presents no question for our decision. The evidence is not reported. Therefore the findings of the judge must stand as true. The petition ought to have been disposed of by the entry of a decree. It is elementary that according to proper practice in equity the final determination of any substantial issue ought to be manifested by the entry of a decree, although sometimes orders have been held to be subject to review on appeal from final decree. Churchill v. Churchill, 239 Mass. 443, 445, 446, 132 N. E. 185;Nelson Theatre Co. v. Nelson, 216 Mass. 30, 33, 102 N. E. 926. If a decree had been entered, it would have been final as to Mr. Samuels and appeal might have lain from it, although other issues in the case as to other parties might remain. Barringer v. Northbridge, 266 Mass. 315, 318, 165 N. E. 400. No matter in equity can come before the full court as of right except on appeal from a final decree. Knox v. Springfield, 273 Mass. 109, 173 N. E. 439. This appeal must be dismissed.

The plaintiff appealed from the decree of September 18, 1931, respecting the petition of Morris Silverman for leave to intervene, and also appealed from the entry of a further decree on October 5, 1931, on that petition. Each is entitled ‘Interlocutory Decree.’ The petition of Morris Silverman for leave to intervene was filed on September 15, 1931. Previously to that date the amount due to the plaintiff from the defendant had been fixed and Morris Kaplan had been brought in as a party by a motion for equitable relief under St. 1925, c. 170. On September 8, 1931, decree had been entered as stated by the judge in his findings ‘ordering the defendant in equitable process, Morris Kaplan, to pay the plaintiff Max Check said sum of $904.08, to be used by said plaintiff in satisfying the amount hitherto determined to be due him from the principal defendant, Annie Kaplan [Annie D. Kaplan], viz., $535.00, with interest and costs, and to pay the balance to Edith M. Check in part satisfaction of her claim against Annie Kaplan [Annie D. Kaplan], as hitherto determined to be $602.55, with interest and costs. Thereafter, on September 15, 1931, the petition of Morris Silverman, as holder of an unsatisfied execution for $888.10 against Max Check for leave to intervene as claimant of the amount found due from Annie Kaplan [Annie D. Kaplan], to Max Check, was' filed. The decree of October 5, 1931, was to the effect that the clerk of the superior court ‘be and he is hereby ordered and directed, upon receipt by said clerk of the money which Morris Kaplan has heretofore been ordered to pay and deposit in Court by decree entered September 18, 1931, to pay over said money to the petitioner Morris Silverman.’

The effect of these two decrees in combination was to deprive the plaintiff of the fruits of his action at law against the original defendant and of the equitable relief for the collection of his claim established against that defendant sought and obtained by him against Morris Kaplan. He thus would receive nothing from his action at law and equitable proceedings supplementary to it except that the amount awarded him would be applied in part payment of the judgment debt of Silverman against him. That disposition of the case, so far as concerns him, was final. It was adverse to him and he was aggrieved thereby....