City of Fitchburg v. Fitchburg R. Co.
| Decision Date | 28 February 1902 |
| Citation | 62 N.E. 989,180 Mass. 535 |
| Parties | MAYOR, ETC., OF CITY OF FITCHBURG v. FITCHBURG R. CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. P. Hall, for city of Fitchburg.
Thayer & Rugg, for petitioners.
About 18 months after the report of the commissioners was confirmed by a decree of the superior court, it was represented to the court that there was a clerical error in the report, and upon motion the court, with the consent of all the parties vacated the decree, and recommitted the report to the commission for the purpose of enabling it to correct the error. One of the commissioners having died since the filing of the original report, the vacancy was filled by a new appointment. The error was corrected by the commission thus constituted, and the report as thus corrected was returned to court. At this stage of the proceedings the appellants, being landowners abutting upon the discontinued portion of Laurel street, as the decree originally read, but not upon the discontinued portion as corrected, made their first appearance in the case, and upon their motion they were allowed to be heard in objection to the confirmation of the corrected report. The presiding justice ordered the report confirmed, and they appealed. The case is before us on the appeal.
It is to be observed that there was no appeal from the order vacating the original decree and recommitting the report, nor from the order filling the vacancy caused by the death of a member of the original commission. It must be assumed also that the court was satisfied that there was a clerical error in the report, or, in other words, that the report did not express the actual decision to which the commissioners had come, and which they intended to express, and supposed they had expressed. It was not a case where the commissioners were to have an opportunity to change their decision. In drafting the report a clerical error had been made, and the sole purpose of vacating the decree was to correct this error so that the report should be in conformity with the truth. We think that the superior court had the power to permit the correction of this error. Although the language of the statute is that the decree of the court confirming the report of the commission shall be final and binding, yet, in the absence of any statutory provision to the contrary, such a decree must be held subject to the usual power...
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