City of Boston v. Santosuosso
| Decision Date | 30 January 1939 |
| Citation | 302 Mass. 169,18 N.E.2d 1009 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CITY OF BOSTON v. JOSEPH SANTOSUOSSO & another. |
January 6, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & COX, JJ.
Equity Pleading and Practice, Appeal, Character of pleading. Whether circumstances shown at a hearing under G.L. (Ter. Ed.) c 231,
Section 135 constituted a "cause shown" for extension of the time for entry in this court of an appeal from a final decree in a suit in equity in the Superior Court, was to be determined by the exercise of sound judicial discretion by a judge of the Superior Court.
A description, in a motion for extension of the time for entry in this court of an appeal from a final decree in a suit in equity, of intention of the appellant "to file a motion for the reopening and rehearing" of the suit on evidence later to be ascertained, was interpreted by this court as a statement of intended action by bill of review. No error of law nor improper exercise of discretion by a judge of the
Superior Court was shown in the granting of two extensions of the time within which an appeal by the defendant from a final decree in a suit in equity should be filed in this court after the completion of the necessary appeal papers under G.L. (Ter Ed.) c. 231, Section 135, where the purported "cause" for the application was the pendency of a criminal trial against a witness who had testified for the plaintiff in the suit, from which the appellant expected to obtain material evidence theretofore unknown to and not obtainable by him to form a proper basis for proceeding by a bill of review of the decree appealed from.
BILL IN EQUITY, filed in the Superior Court on January 21, 1937. The suit was heard by Fosdick, J. From a final decree entered by his order the defendants appealed. The present record relates only to the plaintiff's exceptions to and appeals from action by the judge upon motions relating to extensions of the time for filing the defendants' appeals in this court.
E. F. McClennen, Special Assistant Corporation Counsel, for the plaintiff.
W. P. Murray, for the defendant Curley. F. L. Simpson, for the defendant Santosuosso.
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 12, 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.
G.L. (Ter. Ed.) c. 214, Section 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 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. 153 , 154-155.
Said Section 135 makes rigid requirements with respect to the times within which the several steps in the completion of an appeal, including the entry of the appeal in this court, shall be taken by the appellant. But the paragraph contains a provision for relief from these rigid requirements in the following language: "The court in which the case is pending, 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." The present case, when each of the extensions of time for entry of the appeals was granted, was "pending" in the Superior Court (see G.L. [Ter. Ed.] c. 214, Section 19), and, so far as appears, each of the extensions was granted before the time previously fixed for entry had expired. See Buchannan v. Meisner, 279 Mass. 457 , 461-462; Stanwood v. Adams Garage Inc. 281 Mass. 452. Moreover, the phrase, "any of the acts required by this paragraph," the time for doing which may be extended, clearly includes the act of entering an appeal in this court. Furthermore, the extension of time for such entry in each instance was granted "after hearing."
The primary, if not the sole, contention of the plaintiff is, in substance, that the purported "cause" for the action of the judge of the trial court in extending the time for entry of the appeals, as matter of law, was not such a "cause shown," within the meaning of Section 135, as empowered him to exercise any discretion to extend the time of entry. This contention cannot be sustained.
The purported "cause" of the first extension, as appears from the bill of exceptions relating thereto, 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." But the judge "made no findings or inferences as to the truth or falsity of the allegations" in the motions to the effect that such evidence would be material in the present case and form a proper basis for a motion for a rehearing thereof.
The explicit provisions of said Section 135 relating to the dates "for the several necessary steps" in the completion of an appeal import a purpose on the part of the General Court "to prevent undue delays in the actual presentation of cases to this court." Charbonneau v Guillet, 278 Mass. 153 , 155. That this purpose may not be frustrated, it is a natural implication that the power to relieve from these rigid requirements is to be exercised sparingly. But the purpose of the exercise of this power contemplated by the statute is to prevent injustice in...
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