Day v. Mills

• Decision Date: 26 February 1913
• Citation: 100 N.E. 1113,213 Mass. 585
• Parties: DAY v. MILLS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 585

100 N.E. 1113

DAY v. MILLS.

Supreme Judicial Court of Massachusetts, Hampden.

February 26, 1913

COUNSEL

D. E. Webster, of Springfield, for petitioner.

Thos W. Kenefick, of Palmer, and J. B. Carroll and W. H McClintock, both of Springfield, for respondent.

OPINION

RUGG C.J.

This is a petition for review of a judgment by way of final decree obtained against the petitioner by the respondent in a suit in equity brought by the latter as plaintiff to redeem land from a mortgage held by the present petitioner, defendant in the equity suit. The equity suit was heard upon its merits before a master, and upon an additional and subsequent issue by the court. The petitioner alleges that the hearing before the master was had in the absence of certain of his material witnesses. But his course under such circumstances was to ask for a continuance under the well settled practice. No newly discovered evidence in its legal sense is alleged, and that which is referred to appears to have been merely cumulative. It further alleges a hearing without notice to him and his ability and intention if notified to have been present and produce evidence in his behalf. Upon all matters of fact the findng was adverse to the petitioner in the superior court. It is familiar law that such decision is not open to revision here.

In the suit in equity final decree was entered in the susperior court ordering Day to convey to Mills the land in question discharged of the mortgage, to pay her $795.66, being the amount found due upon accounting for use and occupation of the land, and awarding no costs to either party. From this decree Day appealed to this court. 206 Mass. 530, 92 N.E. 803. The material part of the rescript in accordance with that opinion was in these words:

'In the case of Melissa L. Mills v. Epaphro A. Day pending in the superior court for the county of Hampden: Ordered that the clerk of said court in said county make the following entry under said case in the docket of said court, viz.: The final decree is to be modified by giving the defendants costs, and thus modified the decree confirming the master's report and the final decree are to stand.' It was filed in October, 1910. The master's report brought the account down to 1908. In March, 1911, upon motion of Mills and after hearing the superior court made a supplemental decree bringing the account between the parties down to that date, and charging Day with $200 for the net rental of the land for 1909 and 1910. An amended final decree was entered, the first two paragraphs of which touching reconveyance of land, discharge of mortgage and declaration that note had been paid was in the language of the final decree appealed from in 206 Mass. 530, 92 N.E. 803, and a third paragraph directing Day to pay to Mills a sum made up of the amount originally ordered paid, and the $200 found due by the supplementary decree, but containing no reference to costs. The question is whether any error of law is presented in this record. Stated more specifically, it is whether when in a suit in equity an appeal to the full court is taken from a final decree entered in the superior court, a rescript which directs a docket entry confirming certain parts of the decree and changing other parts is a decree of such nature that the superior court has no further power over the case save to enter a decree in accordance with the terms of the rescript. It was decided, after mature consideration, in Merrill v. Beckwith, 168 Mass. 72, 46 N.E. 400, that 'the rescript of the full court directing a decree to be entered is an order for a decree, but not the decree itself.'

A docket entry or an order for a docket entry is not a final decree. Plaisted v. Cooke, 181 Mass. 118, 63 N.E 132. This decision has been reaffirmed repeatedly. Tyndale v. Stanwood, 187 Mass. 531, 73 N.E. 540; Crossman v. Griggs, 188 Mass. 156, 160, 74 N.E. 358. The rescript in the case at bar required the entry of a new decree. This is not a case where this court itself prescribed the form of the final decree which should be entered. In such case no appeal would lie. It was the duty of the superior court in entering such new final decree to follow implicitly the principles of law laid down in the opinion upon which the rescript was founded. Lincoln v. Eaton...