City of Boston v. Santosuosso

• Citation: 302 Mass. 169,18 N.E.2d 1009
• Parties: CITY OF BOSTON v. SANTOSUOSSO et al.
• Decision Date: 30 January 1939
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 169
18 N.E.2d 1009

CITY OF BOSTON
v.
SANTOSUOSSO et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1939.

Exceptions from Superior Court, Suffolk County; F. W. Fosdick, Judge.

Bill in equity by the City of Boston against Joseph Santosuosso and another. From an adverse decree, defendants appeal and plaintiff brings exceptions.

Order in accordance with opinion.

[18 N.E.2d 1010]

E. F. McClennen, Sp. Asst. Corp. Counsel, of Boston, for plaintiff.

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

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

FIELD, Chief Justice.

The plaintiff brought in the Superior Court a bill in equity against the defendants upon which a decree adverse to the defendants was entered on April 18, 1938. Each defendant appealed therefrom: the defendant Santosuosso on April 21, 1938, and the defendant Curley on May 3, 1938. Such appeals were entered in this court on December 13, 1938.

Prior to the entry of these appeals in this court each defendant, on October 17, 1938, moved in the Superior Court that the time for entering his appeal be extended until November 15, 1938. On the same day each motion, after hearing, was allowed by the judge who had heard the case on its merits. The plaintiff, on October 20, 1938, moved in the Superior Court that the appeals of the defendants be dismissed. This motion was denied, after hearing. The plaintiff excepted to the allowance of the defendants' motions for extension of time and to the denial of the plaintiff's motion to dismiss the appeals and these exceptions were embodied in a bill of exceptions. The plaintiff also appealed from the allowance of the defendants' motions and the denial of the plaintiff's motion. The defendants, on November 14, 1938, filed a motion that the time for entry of their appeals be further extended until January 9, 1939, which, on the same day, after hearing, was allowed by the judge who had heard the case on its merits. The plaintiff excepted and this exception was embodied in a bill of exceptions. The plaintiff also appealed. After the entry of the defendants' appeals in this court the plaintiff filed a motion in this court that these appeals be dismissed.

The case now comes before this court solely upon the plaintiff's bills of exceptions, appeals and motion to dismiss the defendants' appeals. The underlying question for decision at this time is whether the action of the judge of the Superior Court in granting the extensions of time for entering in this court the defendants' appeals from the decree of the Superior Court was vitiated by error, so as to be ineffective, with the result that these appeals were not seasonably entered in this court.

[18 N.E.2d 1011]

G.L.(Ter.Ed.) c. 214, § 19, provides that ‘A party aggrieved by * * * a final decree of the superior court may, within twenty days after the entry thereof, appeal therefrom.’ This provision relates to the time for claiming appeal in the Superior Court. The defendants complied with the requirements of this provision. The section provides further that ‘an appeal from a final decree of the superior court shall be entered in the supreme judicial court. The completion of an appeal hereunder shall be governed by section one hundred and thirty-five of chapter two hundred and thirty-one.’ Said section 135 provides for the preparation and transmission to this court at the expense of the appellant of certain papers for its use, and fixes the details of the procedure.

The ‘necessary papers' for completing the appeals were prepared by the clerk of the Superior Court and were ready ‘on or about October 11, 1938,’ and ‘notice in writing of such fact’ was given to each of the defendants on or about October 13, 1938. See section 135. The precise date of such notice does not appear. Under said section 135 the defendants were required to enter their appeals in this court, if at all, within five days ‘after the date of such notice’ unless the time for entry was effectively extended. It is not controverted that the first extension of time was granted within this five-day period. The second extension was granted within the period covered by the first extension, and the case was entered within the period covered by the second extension. If, therefore, the extensions were effective the case was entered seasonably, but if either of them was ineffective the entry was too late. See Charbonneau v. Guillet, 278 Mass....