City of Boston v. Santosuosso

• Decision Date: 28 January 1941
• Citation: 31 N.E.2d 572,308 Mass. 202
• Parties: CITY OF BOSTON v. SANTOSUOSSO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 202

31 N.E.2d 572

CITY OF BOSTON

v.SANTOSUOSSO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1941.

Suit in equity by the City of Boston against Joseph Santosuosso and another. From decrees allowing motions that issuance of execution on final decree after rescript be stayed in order that application might be made to the Supreme Judicial Court for leave to file bill of review, plaintiff appeals.

Decrees reversed and motions denied.Appeal from Superior Court, Suffolk County; Good, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, and COX, JJ.

E. F. McClennen, Sp. Corp. Counsel, and H. Freed, Asst. Corp. Counsel, both of Boston, for plaintiff.

W. P. Murray and F. L. Simpson, both of Boston, for defendants.

FIELD, Chief Justice.

This is another aspect of the case of Boston v. Santosuosso, 298 Mass. 175, 10 N.E.2d 271; Id., 302 Mass. 169, 18 N.E.2d 1009;Id., 307 Mass. 302, 30 N.E.2d 278;Id., 308 Mass. 189, 31 N.E.2d 564. After entry in the Superior Court of a final decree ordering each of the defendants, Santosuosso and Curley, to pay to the plaintiff a certain sum of money and costs, and providing, in the case of each defendant, that ‘the plaintiff have execution against the defendant’ for this sum and interest thereon from the date of the decree and for costs, both defendants appealed to this court. This court issued a rescript affirming the decree with costs. A final decree after rescript was entered in the Superior Court on December 4, 1940, in the words of the final decree appealed from, except that the amounts stated therein apparently have been changed to bring up to the date of the decree after rescript the computation of interest and costs. Each defendant made a motion in the Superior Court that issuance of execution on this final decree after rescript be stayed until January 2, 1941, ‘in order that application may be made to the Supreme Judicial Court for leave to file a Bill of Review’ in the Superior Court. Each motion was supported by an affidavit stating that it was the intention to make such a motion for the purpose of seeking review of the final decree on the ground of newly discovered evidence, stating the general nature of such evidence, and stating that this evidence had not theretofore been available to the defendant in proceedings in the Superior Court or in the Supreme Judicial Court on appeal. These motions bear the indorsement: ‘Dec. 4, 1940, Filed and allowed after hearing,’ with the name of the judge in brackets.

The plaintiff contends that the allowance of these motions was error. The contentions in behalf of one or both of the defendants are (a) that the allowance of his motion was not a proper subject of appeal, (b) that the allowance of the motion was not error, and (c) that the question whether such allowance was error has become moot.

The final decree after rescript provided for the unconditional payment of money by each defendant. Enforcement of such a decree is by execution or by proceedings for contempt. But see also G.L.(Ter.Ed.) c. 224, §§ 14-30. Rule 83 of the Superior Court (1932), however, recognizes that ordinarily enforcement of such a decree should be by execution, since it provides that upon such a decree ‘the clerk, upon request of a party entitled thereto, shall issue a writ of execution in common form thereon, unless the court shall otherwise order, and proceedings for contempt for non-payment shall not be begun upon such decree without leave of court.’ By reason of this rule it is unnecessary to provide expressly in a decree for issue of execution since in the absence of a provision to the contrary such a provision is implied. Peerless Unit Ventilation Co., Inc., v. D'Amore Construction Co., 283 Mass. 121, 126, 186 N.E. 280. The final decree after rescript in the present case, however, provided expressly that the plaintiff should have execution against each defendant for the amount to be paid by him. This provision with respect to each defendant was no less a part of the decree than was the provision that such defendant should pay money to the plaintiff. This fact was recognized in Beacon Oil Co. v. Maniatis, 284 Mass. 574, 577, 188 N.E. 386, 387, where it was said of a decree, that it was a final decree ‘not only because it purports to be final * * * but also because it provides, though unnecessarily * * * for the issue of execution.’ See also Degnan v. Maryland Casualty Co., 271 Mass. 427, 430, 171 N.E. 482;Kingsley v. Fall River, 280 Mass. 395, 401, 182 N.E. 841. We do not intimate that the result of the present case would be different if the decree had been silent on the subject. But the incorporation in the decree of the provisions for execution makes it doubly clear that the court did not by the decree ‘otherwise order.’ It was an element of the decision embodied in the decree that the plaintiff should be entitled to have the decree enforced by execution-though such enforcement is not necessarily exclusive of enforcement by proceedings for contempt. Rule 83 of the Superior Court (1932). Commissioner of Banks v. Tremont Trust Co., 267 Mass. 331, 337, 166 N.E. 848. And the decree left open no details with respect to the time of issuing executions to be settled by supplementary decree. Compare Old Colony Trust Co. v. Great White Spirit Co., 178 Mass. 92, 59 N.E. 673;Id., 181 Mass. 413, 63 N.E. 945;Dolphin v. A. C. Lewis Leather Co., 269 Mass. 132, 137, 139, 168 N.E. 727. The limitations as to time are prescribed by statute. See G.L.(Ter.Ed.) c. 214, § 29; c. 235, §§ 16, 17.

The motions for stay of execution appear to have been allowed by the court after the entry of the final decree after rescript. Obviously the provisions for stay of execution so made were not incorporated in this decree. Whether, if they had been so incorporated, this decree would have failed to conform to the rescript need not be decided. If they have been so incorporated this question might have been raised by appeal from the final decree after rescript. Carilli v. Hersey, 303 Mass. 82, 20 N.E.2d 492.

The plaintiff was entitled under the decree after rescript-except as it was affected by the allowance of the motions in question-to have the clerk of the court in which this decree was entered issue, upon request of the plaintiff, writs of execution in common form against the defendants, subject to the provisions of the statutes relating to such writs. See Rule 83 of the Superior Court (1932); G.L.(Ter.Ed.) c. 214, §§ 29, 41; c. 235, §§ 16, 17. Issuance of such a writ is a ministerial act to be performed by the clerk. Fisher v. Deans, 107 Mass. 118, 119;Costley v. Commonwealth, 118 Mass. 1, 35. In the absence, at least, of a further order of court, the plaintiff had the right to demand, and it would be the duty of the clerk, subject to the limitations fixed by statute, to issue proper executions for the enforcement of the decree for the payment of money. See White v. Morse, 139 Mass. 162, 164, 29 N.E. 539. See also Blanchard v. Waters, 10 Metc. 185, 187;Washington National Bank v. Williams, 188 Mass. 103, 105, 106, 74 N.E. 470. In Briggs v. Wardwell, 10 Mass. 356, 357, it was said of a judgment in an action at law that: ‘There is not in our judicial proceedings a formal award of execution entered on the record. When a judgment is duly entered, the law awards the execution. * * * There is no judicial discretion to be exercised on the subject: the party may demand it of right, within the limitations as to time prescribed by the statute.’ In a suit in equity, however, execution issues only by order of the court express or implied. G.L. (Ter.Ed.) c. 214, §§ 29, 41. Rule 83 of the Superior Court (1932). White v. White, 233 Mass. 39, 44, 123 N.E. 389. See also Burrows v. Purple, 107 Mass. 428, 433, 434, 436. But upon a decree that execution issue, as upon a judgment at law, ‘the party may demand it of right, within the limitations as to time prescribed by the statute.’ Briggs v. Wardwell, 10 Mass. 356, 357. The clerk however, ‘is a ministerial officer of the courts and is subject to the direction of the courts in the performance of his duties. While the issuance of an execution ordinarily may be a ministerial act, questions of law may be involved which require invocation of the judicial power,’ and decisions thereon by the Superior Court are reviewable by this court. Patrick v. Dunbar, 294 Mass. 101, 104, 200 N.E. 896, 897. The judicial power referred to is ‘the power of [a] court to amend its records or its processes * * * so as to make them conform to the truth,’ and this power extends to executions. Dewey v. Peeler, 161 Mass. 135, 136, 36 N.E. 800, 801,42 Am.St.Rep. 399. This power may be exercised, upon motion, to amend an execution so that it will conform to the judgment or decree upon which it is issued or to set aside an execution that is not warranted by such judgment or decree. Chesebro v. Barme,163 Mass. 79, 81, 82, 39 N.E. 1033;Boston & Maine Railroad v. D'Almeida, 221 Mass. 380, 383, 108 N.E. 1065;Patrick v. Dunbar, 294 Mass. 101, 104, 200 N.E. 896.

The defendants, however, did not seek by their motions the exercise of the power of the Superior Court, above described, to make its records and processes conform to the truth. No execution appears to have been issued. Nor is there any contention that the final decree after rescript did not warrant the issuance of executions against the defendants. The defendants, on the contrary, sought by these motions an extension of the time beyond that prescribed by statutes within which execution should not be issued. In support of the motions, reliance is placed upon decisions of this court with respect to the power of the Superior Court to take further proceedings in a case after rescript from this court and before entry of a final decree in the Superior Court upon such rescript. See Day v. Mills, 213 Mass. 585, 587, 588, 100 N.E. 1113;Long v. George, 296 Mass. 574, 577, 7 N.E.2d 149;Carilli v....