City of Boston v. Santosuosso

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: FIELD
• Citation: 308 Mass. 189,31 N.E.2d 564
• Parties: CITY OF BOSTON v. SANTOSUOSSO et al.
• Decision Date: 28 January 1941

308 Mass. 189
31 N.E.2d 564

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. A decree was entered for plaintiff against defendants which was affirmed, and defendant Curley petitions for leave to file in the Superior Court a petition for leave to file a bill in the nature of a bill of review of a decree, and defendant Santosuosso petitions for leave to file in the Superior Court a petition for leave to file a bill of review.

Petitions dismissed.

See, also, 31 N.E.2d 572.

[31 N.E.2d 565]

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, R. Cutler, Corp. Counsel, and H. Freed, Asst. Corp. Counsel, all of Boston, for plaintiff.

W. P. Murray, of Boston, for defendant Curley.

F. L. Simpson, of Boston, for defendant Santosuosso.

[31 N.E.2d 566]

FIELD, Chief Justice.

This suit in equity, brought in the Superior Court by the city of Boston against Joseph Santosuosso and James M. Curley, has previously been before this court three times.

1. By a decision reported in 298 Mass. 175, 10 N.E.2d 271, this court affirmed decrees of the Superior Court overruling demurrers of the defendants and adjudging pleas filed by them insufficient, but without prejudice to set up the facts therein alleged in the answers.

2. Thereafter each defendant moved for the framing of issues for trial by jury. These motions were denied by a judge of the Superior Court. The defendants appealed. The case was then heard on the merits by a judge of that court. The evidence was conflicting in important particulars. The trial judge made detailed findings of fact and an order for a decree against both defendants. Each of them made a motion for a rehearing on the alleged ground of newly discovered evidence. These motions were heard by the trial judge on affidavits and oral testimony. He denied the motions. The defendant Santosuosso appealed. A final decree was entered on April 18, 1938, ordering the defendant Santosuosso to pay to the plaintiff the sum of $25,304 and costs, and ordering the defendant Curley to pay to the plaintiff the sum of $37,957 and costs. In the case of each defendant the decree provided that ‘the plaintiff have execution against the defendant.’ On these appeals this court, after full argument and with an opinion dealing in great detail with the record on appeal and the arguments of counsel based thereon, in a decision reported in 307 Mass. 302, 30 N.E.2d 278, affirmed the decrees denying the motions for the framing of jury issues, the decrees denying motions for rehearing, and the final decree.

3. After the entry of the final decree on April 18, 1938, and after the appeals therefrom, each defendant moved in the Superior Court that the time for entering his appeal in this court be extended until November 15, 1938. These motions were allowed, after hearing, by the judge of the Superior Court who had heard the case on the merits. Upon a subsequent motion by both defendants, after hearing, the time was further extended until January 9, 1939. The propriety of these extensions was challenged by the plaintiff in various ways, but this court, in a decision reported in 302 Mass. 169, 18 N.E.2d 1009, held that the granting of these extensions was within the discretionary power of the judge, and that this court could not say that in any of the instances the exercise of discretion was improper.

The statutory basis for the granting of such an extension is a provision that the ‘court * * * 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’ G. L. (Ter.Ed.) c. 231, § 135, and these acts include the act of entering an appeal in this court. 302 Mass. 169, 172, 18 N.E.2d 1009, 1011. With respect to the purported ‘cause’ of the extension, this court said in part: ‘The purported ‘cause’ of the first extension * * * was the fact that there was then on trial in a session of the Superior Court ‘for the County of Suffolk for Criminal Business a proceeding of Commonwealth v. Frederick H. Graves, the said Graves having been a witness for the plaintiff in this proceeding,’ and that each of the defendants ‘believed and intended to act’ as alleged in the motions for this extension, that is, they believed that in said trial there had appeared and would appear material evidence theretofore unknown to, and not obtainable by, these appellants which would form a proper basis for a motion for rehearing of the present case, and each defendant purposed ‘to file a motion for the reopening and rehearing of this cause after the conclusion of the trial of said Commonwealth v. Graves and after the testimony in said case shall have been reduced to writing so that this defendant may specify accurately the evidence introduced in said case of Commonwealth v. Graves which this defendant will rely on in support of a motion for a reopening and rehearing of this cause.’ At the hearing on the motions counsel for the defendants ‘stated their understanding of the testimony which had developed (at the trial of the case of Commonwealth v. Graves) and upon which they intended to rely in their motion for rehearing.’ * * * It cannot be ruled that the purported ‘cause’ of the first extension, as matter of law, could not be found to be a ‘cause’ therefor within the meaning of section 135. The defendants, after claiming appeals from the decree entered against them, could prosecute such appeals for review of the decree on the record already made, or could seek review of the decree by bill of review, on the ground of newly discovered evidence.

[31 N.E.2d 567]

* * * It cannot be ruled that the belief of an appellant in the existence of newly discovered evidence and an intention on his part to seek review of the decree appealed from by a bill of review on the ground of such evidence could not constitute a ‘cause,’ within the meaning of section 135, for extension of the time for entry of the appeal in this court, in order that, in the interests of justice and the orderly conduct of litigation, such appellant might have an opportunity to determine, before prosecuting his appeal further, whether to seek review of the decree by a bill of review on the ground of newly discovered evidence. * * * The plaintiff, however, attacks the extension of time for entry of the appeals on the ground that it was based on the intention of each of the defendants to ‘file a motion for the reopening and rehearing’ of this case-not a petition for leave to bring a bill of review-and that such a motion would not lie. It is true that such a motion in its technical sense would not lie. * * * The defendants' motions and the finding of the judge were based on intended action by the defendants directed toward obtaining a review of the decree on the ground of newly discovered evidence, which, according to settled law, could be obtained only on a bill of review. Obviously this was the substance of the proceedings contemplated by the defendants notwithstanding the description of the pleadings intended to be filed. * * * The second extension of time for entry of the defendants' appeals was, in effect, merely a lengthening of the period of the first extension.' 302 Mass. 169, 172-176, 18 N.E.2d 1009. In accordance with this line of reasoning-somewhat more fully elaborated-the extensions of time for entering the appeals in this court were upheld. Before the last extension expired, however, the appeals were entered in this court. The disposition thereof appears in the decision reported in 307 Mass. 302, 30 N.E.2d 278, already referred to.

4. After the decision of this court reported in 307 Mass. 302, 30 N.E.2d 278, and the issuing of a rescript to the Superior Court on November 22, 1940, embodying this decision, a final decree after rescript was entered in that court on December 4, 1940, apparently in conformity with the rescript.

5. The defendant Curley now brings before this court a petition entitled: ‘Petition for leave to file in the Superior Court a petition for leave to file a bill in the nature of a bill of review of a decree because of newly discovered evidence and because of the denial of due process of law.’ Attached to said petition is a copy of a petition to the Superior Court for leave to file therein a ‘bill in the nature of a bill of review,’ a copy of which is thereto annexed. The defendant Santosuosso brings in this court a like petition for ‘leave to file in the Superior Court * * * a petition for leave to file a Bill of Review, a copy whereof is annexed’ to the petition brought before this court by the defendant Curley. We do not pause to discuss distinctions between a ‘bill in the nature of a bill of review’ and a ‘bill of review’ since it is obvious that both defendants are seeking the same result-review of the final decree entered in the Superior Court after rescript from this court, which is the function, in a proper case, of a bill of review. See Hyde Park Savings Bank v. Davankoskas, 298 Mass. 421, 423, 11 N.E.2d 3. The petitions, therefore, are considered on this footing.

6. Apart from appeal and certain instances of amendment which are inapplicable to the present case, a final decree can be reviewed or set aside only upon a bill of review. Nelson v. Bailey, 303 Mass. 522, 524, 22 N.E.2d 116, and cases cited. The defendants in the original case-the petitioners here-as above set forth, availed themselves of their rights of appeal from the final decree originally entered in the Superior Court, and that decree has been affirmed by this court and a final decree after rescript has been entered in the Superior Court 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...