Curley v. City of Boston

• Citation: 312 Mass. 58,43 N.E.2d 377
• Parties: JAMES M. CURLEY v. CITY OF BOSTON.
• Decision Date: 15 July 1942
• Court: United States State Supreme Judicial Court of Massachusetts

312 Mass. 58

43 N.E.2d 377

JAMES M. CURLEY v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 15, 1942

October 10, 1941.

Present: FIELD, C.

J., DONAHUE, QUA & COX, JJ.

Equity Jurisdiction, Bill of review. Equity Pleading and Practice Bill of review, Appeal, Waiver. Waiver.

An appeal from a decree denying a petition for leave to file a bill of review was waived by failure to argue the appeal by brief or orally.

Statement by FIELD C.J., of the limitations of the power of a court of equity on a bill, grounded upon alleged newly discovered evidence, seeking review of a final decree entered after a rescript from this court, and of the discretionary power of the court of equity, acting subject to those limitations, respecting the granting of leave to file the bill of review.

Denial of a petition for leave to file a bill, grounded upon alleged newly discovered evidence, seeking review of a final decree for the plaintiff entered in a suit in equity after a rescript from this court, disclosed no error of law or fact in the exercise by the trial judge of his discretion, where such evidence did not directly controvert the facts which were determinative of the decision in the original suit but went merely to impeach the credit of the plaintiff's principal witness and in part was merely cumulative of evidence at the trial of that suit.

PETITION, filed in the Superior Court on January 29, 1941. The case was heard by Fosdick, J.

W. P. Murray, (C.

M. Binnig with him,) for the petitioner.

E. F. McClennen, Special Corporation Counsel, (H.

Freed, Assistant Corporation Counsel, with him,) for the respondent.

FIELD, C.J. This is an appeal by James M. Curley from a decree of the Superior Court denying a petition filed by him in that court for leave to file in that court a bill of review, a copy of which proposed bill of review is attached to the petition. The petitioner seeks by the proposed bill of review to review on the ground of alleged newly discovered evidence a decree of the Superior Court entered after rescript from the Supreme Judicial Court in a suit in equity brought by the city of Boston against said James M. Curley and Joseph Santosuosso as defendants, whereby the defendant Curley and the defendant Santosuosso were each ordered to pay a sum of money to the plaintiff in the suit, the city of Boston. The decision of this court on the merits is reported in Boston v Santosuosso, 307 Mass. 302. See Boston v. Santosuosso, 298 Mass. 175 , 302 Mass. 169 , 308 Mass. 189, and 308 Mass. 202 . Joseph Santosuosso also filed in the Superior Court a petition for leave to file a bill of review. His petition was denied, and he appealed and entered his appeal in this court. But he has not argued his appeal by brief or orally, and, consequently, his appeal must be regarded as waived. Soscia v. Soscia, 310 Mass. 418 , 420, and cases cited. Therefore, only the appeal of James M. Curley, herein referred to as the petitioner, requires consideration.

1. A bill of review in the Superior Court is the proper remedy to review, on the ground of newly discovered evidence, a final decree entered in that court after rescript from the Supreme Judicial Court. Boston v. Santosuosso, 308 Mass. 189 , 196; 308 Mass. 202 , 211. But a "bill of review of a final decree after rescript cannot be filed in the Superior Court as matter of right without leave of that court." Boston v. Santosuosso, 308 Mass. 189 , 198, and cases cited. And the power of the Superior Court to review on a bill of review, on the ground of newly discovered evidence, a final decree after rescript is limited. (a) That court cannot so review matters of law or fact that have been decided by this court. The "theory of a bill of review on newly discovered evidence is that by reason of such newly discovered evidence `a new case is made out, which this court has never passed upon.' Gale v. Nickerson, 144 Mass. 415 , 418. Crocker v. Crocker, 198 Mass. 401 , 407." Boston v. Santosuosso, 308 Mass. 189, 198. (b) A "bill of review, by an unsuccessful defendant, ought not to be entertained, unless it affirmatively appears, that he had a good defence on the merits, of which he has been deprived, or that some fraud or wrong has been practised upon him. . . . It must be indispensable to the justice and merits of the case." Manning v. Woodlawn Cemetery Corp. 249 Mass. 281, 288. (c) Newly discovered evidence that constitutes ground for a bill of review of a final decree must be evidence that the party seeking such review has had no reasonable opportunity to present before the entry of such final decree. Manning v. Woodlawn Cemetery Corp. 249 Mass. 281 , 288. Boston & Maine Railroad v. Greenfield, 253 Mass. 391 , 397. Long v. George, 296 Mass. 574 , 579. Hyde Park Savings Bank v. Davankoskas, 298 Mass. 421, 423. Counelis v. Andreson, 299 Mass. 382 , 383. Boston v. Santosuosso, 308 Mass. 189 , 196-198. See also Nicholas v. Lewis Furniture Co. 292 Mass. 500 , 505-506. Subject to these limitations, the question whether such leave shall be granted by the Superior Court "is a matter within the discretion of that court, subject, as are other matters of discretion, to review by this court," and the exercise of this discretionary power "may involve not merely an examination of the petition and of the bill of review sought to be filed, but also a consideration of the nature, materiality and credibility of the alleged newly discovered evidence." Boston v. Santosuosso, 308 Mass. 189 , 198, 201.

Upon review by this court on appeal from the exercise of the discretionary power of the Superior Court with respect to granting leave to file a bill of review, weight must be given to the exercise of such discretionary power by that court, and "error of law or fact must be shown by the record on appeal, in order that the discretionary action may be reversed." Long v. George, 296 Mass. 574 , 579. Boston v. Santosuosso, 307 Mass. 302, 353.

2. The question for decision in this case, therefore, is whether upon the record before us the trial judge committed error of law or fact, in the exercise of his discretionary power, by denying the petition of the petitioner for leave to file the bill of review attached to the petition based on the ground of alleged newly discovered evidence.

3. There is no report of material facts found by the judge in accordance with the provisions of G. L. (Ter. Ed.) c. 214, Section 23, nor does it appear that any request was made for such a report. Nor is there any report of the evidence in accordance with established practice. See G. L. (Ter. Ed.) c. 214, Section 24; Rule 76 of the Superior Court (1932); Plumer v. Houghton & Dutton Co. 277 Mass. 209 , 215. See also Mulrey v. Carberry, 204 Mass. 378, 381-382; Brodrick v. O'Connor, 271 Mass. 240 , 242-243. The record, however, contains a certification of the trial judge, in accordance with an agreement of the parties, that "the entire evidence received at the hearing of the petition consisted of the transcript of the evidence in Com. v. Graves and the printed copy of the record in City of Boston v. Santosuosso et al," and a transcript of such evidence and such printed record have been presented to this court in accordance with an agreement of the parties. Since this printed record is a part of the files of this court we might take judicial notice of it even if it were not incorporated in the present record. Commonwealth v. DiStasio, 298 Mass. 562 , 567. Culhane v. Foley, 305 Mass. 542 , 543. While the manner in which the evidence is brought before us is not in accordance with established practice, and cannot be approved as correct practice, it is not open to the objection pointed out in Gorey v. Guarente, 303 Mass. 569 , 570-571, and we deal with the case, as the parties have done, as an appeal upon a full report of the evidence including a transcript of the evidence in Commonwealth v. Graves -- an indictment, as the record discloses, of Frederick H. Graves for perjury at the trial of the original suit, upon which the defendant was acquitted.

According to the record in the original suit the petitioner knew before the entry in this court of his appeal from the final decree in the Superior Court first made in that suit that the criminal case against Graves was then on trial, and an extension of time for entry of this appeal was granted on that account. Boston v. Santosuosso, 302 Mass. 169 . And the record on the present petition discloses that the trial of the criminal case was concluded before the appeal from this final decree in the original suit was entered in this court.

4. The argument of the petitioner upon the present petition is, in substance, a reargument of the case already decided, based upon evidence that was previously before this court set forth in "the printed copy of the record in City of Boston v. Santosuosso et al," and upon the evidence at the trial of the criminal case of Commonwealth v. Graves appearing in the transcript of such evidence. Obviously, the evidence set forth in the printed record in the case of Boston v Santosuosso -- including the evidence upon motions for new trials, which were denied -- is in no aspect "newly discovered evidence." This evidence and the findings made thereon by the trial judge were considered at length in the opinion of this court on the merits in the original suit. 307 Mass. 302 , 331-352. The matter there considered was not open to review by the Superior Court on the present petition unless, by reason of newly discovered evidence, "a new case is made out, which this court has never passed upon." The petitioner's case for leave to file a bill of review upon the ground of newly discovered evidence, therefore, necessarily rests upon the evidence at the trial of the...