Cherry v. Auger
| Decision Date | 26 May 1938 |
| Citation | 15 N.E.2d 203,300 Mass. 367 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | GEORGE R. CHERRY v. ASA AUGER & others. |
January 6, 1938.
Present: RUGG, C.
J., DONAHUE, QUA DOLAN, & COX, JJ.
Equity Pleading and Practice, Appeal: dismissal for failure to order preparation of papers; Motion.
After entry in this court of the printed record of an appeal in a suit in equity in the Superior Court, this was the proper court in which to present a motion not previously presented in the Superior Court to dismiss the appeal for failure to give the clerk of the Superior Court the order in writing required by Section 135 of G.L. (Ter. Ed.) c. 231 for preparation of the appeal papers.
A letter to a clerk of courts merely requesting "an estimate for the preparation" of appeal papers in a suit in equity did not meet the requirement in Section 135 of G.L. (Ter. Ed.) c 231 of an "order in writing" and, although the appellant intended the letter to be an order, the appeal was dismissed for lack of compliance with the statute.
Notice of the filing in this court of a motion to dismiss an appeal was not invalid merely because it was given the day before the motion was filed.
BILL IN EQUITY filed in the Superior Court with a writ of summons and attachment dated August 1, 1936.
After entry in this court of appeals by the defendants, the plaintiff filed a motion that the appeals be dismissed.
G. P. Ponte, (S.
E. Bentley with him,) for the plaintiff.
A. Auger, for the defendants.
This suit in equity was brought in the Superior Court by the plaintiff against the defendants who, were alleged to be his copartners and the heirs, legatees, devisees or personal representatives of deceased copartners, for contribution of their share of money paid by the plaintiff to a bank on a note of the partnership. A final decree was entered in favor of the plaintiff on June 23, 1937. A claim of appeal from this decree was filed on July 9, 1937, in behalf of various defendants. Two others filed an appeal on July 12, 1937. On July 9, 1937, a letter of this tenor, referring to the case by name, was written by the attorney for the defendants to the clerk of courts: This statement was followed by a further suggestion of an appointment for conference concerning documents to be printed. On August 6, 1937, a letter containing an estimate of cost of preparation of the case for the full court was sent by the clerk of courts to the attorney. On August 7 1937, check for the amount of that estimate was sent by the attorney for the defendants to the clerk of courts, which was received on August 9, 1937. The transmitting letter simply stated that the check was enclosed to pay for the preparation of the case for the full court as estimated in the letter of the clerk of courts of August 6, 1937. The case was entered on the docket of the full court on October 2, 1937.
A motion was filed in the full court on October 28, 1937, that the appeal be dismissed for failure to comply with the requirements of G.L. (Ter. Ed.) c. 231, Section 135. The relevant provisions of that section are these: The motion to dismiss the appeal was argued at the bar upon the facts therein set forth. They were accepted as true. There is no contention that they are not true. They have been narrated.
The defendants contend that the motion to dismiss in these circumstances cannot rightly be considered by the full court. That contention is not sound. The proper papers have been prepared and the case in form has been entered in the full court. It is to be disposed of here. Charbonneau v. Guillet, 278 Mass. 153 , 155. Silverstein v. Daniel Russell Boiler Works, Inc. 254 Mass. 137 , 139. Crawford v. Roloson, 254 Mass. 163 , 168. Dondis v. Lash, 277 Mass. 477 . Gora v. Neapolitan Ice Cream Co. 259 Mass. 463 . A motion of this nature, if seasonably presented in the court where the proceeding was pending, would be within the jurisdiction of that court. Littlejohn v. Littlejohn, 236 Mass. 326 , 329. Wiakowicz v. Hwalek, 273 Mass. 122, 124. Hubbard v. Southbridge National Bank, 297 Mass. 17 . G.L. (Ter. Ed.) c. 231, Section 133, as amended by St. 1933, c. 300, Section 2. The action of that court as to the disposition of such motion may be reviewed in the full court on appropriate proceedings. Lanza v. Leveroni, 266 Mass. 563 , 565. McCarty v. Boyden, 275 Mass. 91 . That course of procedure was not followed in the case at bar. No motion to dismiss the claim of appeal was ever made in the Superior Court, as appears by its docket entries. Therefore, the motion to dismiss is rightly before this court for disposition on its merits.
The case at bar became ripe for final preparation and printing of the record for the full court on July 9, 1937, when appeal was seasonably taken from the final decree. Under the terms of said Section 135, the defendants were allowed ten days from that date within which to give to the clerk of courts an order in writing as there required.
The letter of July 9, 1937, was the only communication in writing given by the attorney for the defendants to the clerk of courts within ten days after the claim of appeal was filed, when the case became ripe for final preparation and printing of the record.
The precise question raised by the motion is whether the letter of July 9, 1937, to the clerk of courts, the material parts of which have been hitherto quoted, was in conformity to the statutory mandate of said Section 135, already set forth. That statute requires "an order in writing for the preparation of such papers" as are necessary for the presentation of the case to the full c...
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