Donnelly v. Montague

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: 24 N.E.2d 864,305 Mass. 14
• Decision Date: 04 January 1940
• Parties: DONNELLY v. MONTAGUE.

305 Mass. 14
24 N.E.2d 864

DONNELLY
v.
MONTAGUE.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 4, 1940.

Supplementary proceeding after judgment by John J. Donnelly against Richard B. Montague, in an action on a note. The Appellate Division dismissed a report for want of jurisdiction, following dismissal of the proceeding, and the judgment creditor appeals.

Appeal dismissed.

[24 N.E.2d 864]

Appeal from Appellate Division, Northern District.
J. H. Ramsey, of Boston, for creditor.

A. De J. Cardozo, of Boston, for debtor.

LUMMUS, Justice.

This is a supplementary proceeding after a judgment for the plaintiff in a civil action upon a promissory note made by the

[24 N.E.2d 865]

defendant. It is brought under G.L.(Ter.Ed.) c. 224, §§ 14-17, which were introduced into our law by St.1927, c. 334. While this proceeding for the examination of the judgment debtor as to his property and ability to pay the judgment was pending in the District Court, he filed a voluntary petition in bankruptcy and obtained a discharge. He then moved that this proceeding be dismissed, because the judgment upon which it was founded had been discharged in bankruptcy. The judgment creditor contended that the judgment was of a kind that was not so discharged. The judge ruled that a dismissal of this proceeding was required as matter of law. The Appellate Division dismissed a report to it on the ground that it had no jurisdiction. The judgment creditor claimed an appeal to this court under G.L.(Ter.Ed.) c. 231, § 109.

Under the appeal system formerly existing in district courts, ‘a party aggrieved by the judgment of a district court in a civil action’ might appeal therefrom to the Superior Court and there obtain a complete new trial upon the facts as well as the law. R.L.(1902,) c. 173, § 97, G.L.1921, c. 231, § 97. The appeal was from the final judgment, upon which, unless vacated by appeal, execution would issue. Bowler v. Palmer, 2 Gray 553. See Morse v. O'Hara, 247 Mass. 183, 186, 187, 142 N.E. 40;Renado v. Lummus, 205 Mass. 155, 156, 91 N.E. 144. This kind of appeal never fell into the uncertainty and confusion that attended appeals to this court from the Superior Court. Keljikian v. Star Brewing Co. Mass., 20 N.E.2d 465. Petitions to vacate judgment and petitions for and writs of review could be carried to the Superior Court by appeal from the judgments in such proceedings, which were separate from the earlier actions the judgments in which were to be vacated or reviewed. Yetten v. Conroy, 165 Mass. 238, 42 N.E. 1130;Clarke v. Bacall, 171 Mass. 292, 50 N.E. 614;Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N.E. 364. See also Lynch v. Springfield Safe Deposit & Trust Co., Mass., 13 N.E.2d 611. The same was true of a petition for a writ of scire facias to obtain a new execution upon a judgment against the principal defendant. Perkins v. Bangs, 206 Mass. 408, 415, 416, 92 N.E. 623. Compare Universal Optical Corp. v. Globe Optical Co., 228 Mass. 84, 116 N.E. 491.

On the other hand, supplementary proceedings after judgment, like the earlier poor debtor proceedings and equitable process after judgment (G.L.1921, cc. 224, 225), end in no definite ‘judgment’ in the sense in which that word is used in the statute relative to appeals to the Superior Court, and never were appealable to that court. Fletcher v. Bartlett, 10 Gray 491;Russell v. Goodrich, 8 Allen 150; Brown's Case, 173 Mass. 498, 53 N.E. 998;Giarruso v. Payson, 272 Mass. 417, 420, 421, 172 N.E. 610; G.L. (Ter.Ed.) c. 224, § 18. See also Renado v. Lummus, 205 Mass. 155, 158, 91 N.E. 144. The only exception is, that a judgment upon charges of fraud or misconduct was and still is appealable under a special statutory provision. G.L.1921, c. 224, § 41, G.L.(Ter.Ed.) c. 224, § 19; Morse v. O'Hara, 247 Mass. 183, 142 N.E. 40.

The earlier appeal system was substantially abolished in the Municipal Court of the City of Boston by St.1912, c. 649, and in other district courts by St.1922, c. 532. But the abolition was not quite complete. Summary process for the possession of land was expressly excepted from the new practice created by those statutes. R.L.1902, c. 181, §§ 2, 8; St.1912, c. 649, §§ 2, 3, 7; St.1918, c. 257, § 409, G.L.1921, c. 239, § 2; c. 231, §§ 103, 104, St.1921, c. 486, § 36, G.L.(Ter.Ed.) c. 231, § 103. The essence of the new practice was that a plaintiff who elects to begin in a district court an action or other proceeding which he might have begun in the Superior Court, and any other party who suffers such an action or proceeding to remain in a district court without exercising his right to remove it before trial to the Superior Court as provided in G.L.(Ter.Ed.) c. 231, § 104, waives the right of trial by jury and has no right to appeal to the Superior Court from the judgment of the District Court. Since a petition to vacate judgment, or a petition for or writ of review, with respect to a judgment of a district court, cannot be brought in the Superior Court, the plaintiff has no election. Such a case, therefore, is not within the new practice, but remains subject to the old appeal system. G.L.(Ter.Ed.) c. 231, § 97; Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N.E. 364;Id., 237 Mass. 505, 130 N.E. 111;Town of Hopkinton v. B. F. Sturtevant Co., 285 Mass. 272, 275, 189 N.E. 107;

[24 N.E.2d 866]

Home Finance Trust v. Rantoul Garage Co., Mass., 14 N.E.2d 153;Beserosky v. Mason, 269 Mass. 325, 327, 168 N.E. 726. Likewise, supplementary proceedings like the present, though there is no right of appeal, are not within the new practice because there can be no election to begin them in the Superior Court.

The Appellate Division which by the new practice is made a part of each district court (Buchannan v. Meisner, 279 Mass. 457, 460, 181 N.E. 742) is a tribunal resort to which is a substitute for the old system of appeals to the Superior Court. G.L...