Dondis v. Lash

• Decision Date: 04 December 1931
• Citation: 277 Mass. 477,178 N.E. 624
• Parties: DONDIS v. LASH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 477

178 N.E. 624

DONDIS

v.LASH et al.

Supreme Judicial Court of Massachusetts, Bristol.

Dec. 4, 1931.

Appeal from Superior Court, Bristol County; Raoul H. Beaudreau, Judge.

Action by Jacob Dondis against David Lash and another. From the decree, plaintiff appeals. Defendants move to dismiss the appeal, and plaintiff petitions to enter his appeal late.

Petition for late entry granted, and decree reversed and rendered.A. E. Seagrave, of Fall River, for appellant.

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

RUGG, C. J.

This is an appeal by the plaintiff from an adverse decree entered in the superior court on October [277 Mass. 480]17, 1930. The plaintiff appealed on October 20, 1930, and on that date filed a request under G. L. c. 214, § 23, for a report of material facts. On November 1, 1930, such report was filed. On November 4 an order in writing was given to the clerk of courts for the preparation of the necessary papers and copies for transmission to the full court. On November 10, 1930, the estimate of expense was furnished by the clerk as requested, and the amount thereof was paid on November 21, 1930, and the case was entered in this court on December 10, 1930. On May 8, 1931, the defendants filed in this court a motion to dismiss the appeal for the reason that it appeared from the record ‘that the order in writing for the preparation of the appeal was not given to the clerk * * * within the time required by law.’

The statute in force at the time the appeal was taken was G. L. c. 231, § 135, as amended by St. 1929, c. 265, § 1. The terms of that statute were mandatory to the effect that a party in the position of the plaintiff ‘shall give to the clerk * * * of the court in which the case is pending, within ten days after the appeal * * * an order in writing for the preparation of * * * papers and copies of papers for transmission to the full court.’ Since the appeal was filed on October 20, 1930, and the order was not given until November 4, 1930, it is plain that there was no compliance with the mandatory requirements of this statute. Niosi v. Leveroni, 274 Mass. 118,174 N. E. 228;McCarty v. Boyden (Mass.) 175 N. E. 292;Moffatt v. Martell (Mass.) 177 N. E. 102. Said section 135, as amended, was further amended by St. 1931, c. 219, whereby the limitation of time for giving the order to the clerk for preparation of papers was changed so that it must be given ‘within ten days after the case becomes ripe for final preparation and printing of the record for the full court.’ Said chapter 219 was approved on April 17, 1931, and, having been declared to be an emergency law, was in effect on May 8 when the motion to dismiss this appeal was filed. Said section 135, as most lately amended by said chapter 219, relates to practice and procedure and therefore applies to pending cases. There is, however, nothing in that section as most lately amended to indicate that it was intended to be retroactive to the extent of making valid steps in procedure completed before its enactment and invalid under the statutes as then existing. Steps in procedure already taken must stand or fall in accordance with the provisions of law applicable at the time those steps were taken. Steps in procedure invalid under controlling rules of law at the time they were taken are not validated by any of the words in said chapter 219. Although the order in writing for preparation of papers given by the plaintiff on November 4, 1930, would have been seasonable if St. 1931, c. 219, had been in force at that time, there is nothing in that chapter to warrant the conclusion that such an order, invalid when given, was to be thereby made valid even though it would have been valid if given subsequently to the effective date of that chapter. The circumstance that the motion to dismiss the appeal was filed after the enactment of said chapter 219 does not affect the rights of the parties which were fixed by events coming to pass in the preceding October and November. It follows that the motion to dismiss must be granted under the controlling statutory words in effect in October and November, 1930, and under the authority of the cases already cited. There is nothing in Moffatt v. Martell (Mass.) 177 N. E. 102, to support the plaintiff's contention.

The plaintiff on October 26, 1931, filed a petition to enter his appeal late under the provisions of G. L. c. 211, § 11, to the effect that ‘If, by mistake or accident, an appeal from the superior court * * * is not duly entered in the full court, that court, upon petition filed within one year after the appeal * * * should have been entered * * * may allow the appellant to enter his appeal. * * *’ Plainly this petition was filed within the time allowed by the statute. Compare Barron v. Barronian (Mass.) 175 N. E. 271; Banker & Tradesman, March 30, 1931. The delay of the plaintiff beyond the statutory period then permitted in giving the order for preparation of the papers was at most only five days. The appeal itself was promptly taken. It does not appear that the rights of the defendant have been adversely affected by that delay. The question is close whether the plaintiff has made out a case under said section 11, Wiakowicz v. Hwalek, 273 Mass. 122, 173 N. E. 432, but the plaintiff has a case worthy of consideration on its merits, Mellet v. Swan, 269 Mass. 173, 168 N. E. 732;Alpert v. Mercury Publishing Co., 272 Mass. 43, 45, 172 N. E. 223;Lovell v. Lovell (Mass.) 176 N. E. 210, and his petition for late entry is granted.

The case on its merits is a suit in equity by a creditor of the first named defendant, hereafter called the defendant, to set aside a conveyance alleged to have been made by him to another defendant in fraud of the plaintiff as a creditor. The case was referred to a master under a rule which required him to hear the parties and their evidence and report his findings without report of the evidence. It was heard by the trial judge upon the master's report. It is the duty of this court in these circumstances to consider and decide the case upon the facts reported by the master together with such reasonable inferences as this court thinks should be drawn therefrom unaffected by the inferences drawn or the decision made by the trial judge. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420;Anagnosti v. Almy, 252 Mass. 492, 501, 147 N. E. 854;Prudential Trust Co. v. Brown, 271 Mass. 132, 139, 171 N. E. 42.

The material facts are that the plaintiff was a creditor of the defendant and others by reason of holding a joint and several note for $24,000, dated March 4, 1925, payable in monthly installments of $125 with specified interest, signed by the first named defendant and two other defendants and secured by a second mortgage of real estate on Pleasant street, in Fall River. At the same time a mortgage was also given as ‘additional security only for two-thirds of the amount which may be due under the said principal mortgage’ on a two-thirds interest in real estate on Second street in Fall River. This second mortgage was given by the defendants David Lash and Charles Lash and provided that it was to be discharged at the end of four years if there was compliance with all terms and conditions of the principal mortgage. At time not stated in the master's report the other makers of the note aside from the defendant became unable to make payments on the principal indebtedness, one of them went into bankruptcy, the plaintiff took steps to foreclose his mortgage on the Pleasant street property, and no evidence was offered to show that he realized anything by foreclosure proceedings. Payments were made from time to time on account of the principal of this indebtedness, and the unpaid balance with interest at the time of the filing of the bill was in the vicinity of $20,000. In October, 1928, as a result of conference between the plaintiff and the defendant the plaintiff discharged his mortgage upon the Second street property and the defendant, in the meantime having acquired sole title thereto, executed a second mortgage to the plaintiff for $5,000 on the entire interest therein subject to pre-existing first mortgage. It contained this clause: ‘This mortgage is given as additional security for the amount of the balance due on note secured by mortgage dated March 4, 1925. * * *’ It was also provided that the mortgage was to be discharged upon the payment of $5,000 by the defendant as mortgagor. At the same time when the parties came to the agreement whereby the plaintiff released the existing mortgage on this property, and the defendant gave the $5,000 mortgage as just described, the defendant gave the plaintiff a check for $1,378.77, an amount less than that then due on the principal note. As a part of the same transaction it was orally agreed that the defendant was to pay enough to bring his payments up to seventy-five per cent. of the amount then due on account of unpaid installments of principal and interest on the March 4, 1925, note, and was to be responsible for only seventy-five...