Dondis v. Lash

• Decision Date: 28 June 1933
• Citation: 186 N.E. 549,283 Mass. 353
• Parties: DONDIS v. LASH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 353

186 N.E. 549

DONDIS

v.LASH et al.

Supreme Judicial Court of Massachusetts, Bristol.

June 28, 1933.

Appeal from Superior Court, Bristol County; J. Donahue, Judge.

Bill by Jacob Dondis against David Lash and others. From a final decree after rescript in favor of plaintiff, defendants appeal.

Affirmed.

J. A. Cohen, of Fall River, for appellants.

J. B. Kelley, Jr., A. E. Seagrave, and L. I. Bakst, all of Fall River, for appellee.

RUGG, Chief Justice.

This is an appeal from a final decree after rescript accompanying the decision reported in 277 Mass. 477, 178 N. E. 624. The record in the case at bar consists of a copy of the rescript, of the final decree after rescript, and of an appeal from that decree by David Lash, Sarah Cohen, and the administrator of the estate of Alexander C. Lash, and nothing more. There is no finding of facts.

On appeal from a final decree in equity on such a bald record as this, without report of evidence and without a finding of facts, the only question presented is whether as matter of law the decree could rightly have been entered on the pleadings. Levinson v. Connors, 269 Mass. 209, 168 N. E. 736.

There can be no appeal from a final decree entered substantially in accordance with a rescript of this court. ‘Where the form of the final decree or judgment is not embodied in the rescript or mandate, in appropriate cases examination will be made on appeal of the subsequent record, in order to ascertain whether it is in accordance with the mandate or rescript. If the decree or judgment is in accordance with the rescript or mandate, ordinarily the appeal will be dismissed and the final decree or judgment will stand as if there had been no appeal.’ In re Boston, petitioner, 223 Mass. 36, 37, 111 N. E. 412, 413;Cole v. Holton, 274 Mass. 238, 174 N. E. 468.

The rescript in the case at bar did not state the form of the final decree but ordered among other matters not now material that a final decree be entered ‘establishing the amount due to the plaintiff from the defendant on the basis of an unpaid balance of indebtedness at the date of the filing of the bill of $14,618.97, as found by the master, subject to such modifications as subsequent events may require.’ The final decree after rescript in its paragraph 2 declares the unpaid balance of indebtedness of the defendant David Lash to the plaintiff to be $18,003.33.

It is manifest from the form of the rescript that evidence or statements of fact in place of evidence might be pertinent upon the hearing for final decree after rescript in two respects at least. (1) The rescript contains no division between principal and interest of the $14,618.97 constituting the unpaid balance of indebtedness. That division must be determined in some way. (2) The modifications in that sum required by subsequent events must be determined. These matters were not set out in detail in the master's report printed as part of the record when the case was here before.

The defendant David Lash invokes rules for computation of interest to allocate the unpaid balance of indebtedness between principal and interest and then to ascertain the amount due at the date of the final decree. This method is not convincing. A mere matter of arithmetical calculation would naturally be agreed upon by the parties. The parties, however, are in controversy as to the way in which the indebtedness established by the final decree after rescript was ascertained and as to the correctness of the method employed to that end. If the defendant David Lash desired this court to review those or any other factors connected with the sums stated in the final decree, he ought to have requested the single justice to report the material facts in order that there might be basis for such review. G. L. (Ter. Ed.) c. 214, § 23. Building Inspector of Salem v. Gauthier, 259 Mass. 615, 156 N. E. 684;Plumer v. Houghton & Dutton Co., 277 Mass. 209, 214, 178 N. E. 716. By reason of his failure to do this, there is no adequate basis for reversing this part of the decree. We have no means of knowing what evidence, statements or calculations may have been presented at the hearing for final decree after rescript, or what was in the mind of the single justice in arriving at the figures embodied in the final decree. Worcester v. Lakeside Manuf. Co., 174 Mass. 299, 300, 54 N. E. 833. The defendant David Lash has presented a series of calculations designed to show error in the sums of money stated in the decree, but we are not prepared to say on this meagre record that he is right, or to indulge in speculations on that point, when by following correct procedure all the material facts might have been put in the record at his request.

The final decree after rescript in paragraph 1 adjudges the conveyance by the defendant David Lash to the defendant Sarah Cohen to be fraudulent as against the plaintiff; in paragraph 3 orders the...