Donovan v. Danielson

• Decision Date: 02 June 1928
• Citation: 263 Mass. 419,161 N.E. 807
• Parties: DONOVAN et al. v. DANIELSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 419

161 N.E. 807

DONOVAN et al.

v.DANIELSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1928.

Report from Superior Court, Suffolk County; Stanley E. Qua, Judge.

Suit by John B. Donovan and another against Oscar L. Danielson and another. On report on denial of defendants' motion to strike from docket entry allowing plaintiffs' motion that case be allowed to remain on docket. Denial of defendants' motion affirmed.

J. M. Maloney and E. Carr, both of Boston, for plaintiffs.

F. W. Campbell, of Boston, for defendants.

RUGG, C. J.

This suit in equity as originally brought presented questions of difficulty. Proceedings in it are reported in 244 Mass. 432, 138 N. E. 811. Thereafter, on May 25, 1923, the plaintiffs were allowed to amend upon payment to the defendants of $262. On January 13, 1926, a general order was entered to the effect that on or before May 1, 1926, the clerk of the court send to counsel of record in every case pending on the equity docket which has remained without action for two years preceding the first day of January, 1926, ‘notice that such case will be dismissed on the seventh day of June, 1926, unless a motion that such case be allowed to remain on the docket, setting out fully cause therefor with affidavit in support thereof, shall be filed on or before the first day of said June. The party filing such motion and affidavit shall on the same day give notice thereof to the adverse party as provided in Common Law Rule 27. Proof of such notice, if not accepted, shall be shown by affidavit to be filed with said motion. If no such motion and affidavit with proof of notice thereof are filed, as herein provided, the case without further notice or hearing shall on said seventh day of June be dismissed and entry thereof made by the clerk on the docket under each case.’ The docket shows no entry concerning this case after May 25, 1923, until June 22, 1926. On this later date the plaintiffs filed a motion praying that the case be allowed to remain on the docket, setting out cause alleged therefor with supporting affidavit. On the same date this motion was allowed by a judge of the Superior Court ex parte as of June 1, 1926. The defendants duly appealed and filed exceptions. On July 1, 1926, the defendants filed a motion with supporting affidavit praying that the entry of the allowance of the plaintiff's motion of June 22, 1926, be stricken from the docket because the court was without jurisdiction to make such order. This motion was heard on July 8, 1926, before a different judge and denied. This denial involved a ruling that the court had jurisdiction to make the order. The defendants appealed and excepted. Thereupon the correctness of this ruling was reported and the appeals and exceptions were waived. The single question thus presented for determination is whether the court had jurisdiction to enter the order of June 22, 1926.

The validity of the general order of the Superior Court providing for the dismissal of equity cases which have remained without action an unreasonable time is not questioned. Beal v. Lynch, 242 Mass. 65, 136 N. E. 172. See Cheney v. Boston & Maine Railroad, 246 Mass. 502, 141 N. E. 502.

The effect of the dismissal of an equity cause pursuant to such general order, followed by a docket entry ‘Bill dismissed’ without the subsequent entry of any formal decree, hitherto has not been presented for determination. In actions at law the rule has been long established and is rigid that a dismissal under such general order, without more, ends the case. Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92, and cases there collected. Shour v. Henin, 240 Mass. 242, 133 N. E. 561;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Cheney v. Boston & Maine Railroad, 246 Mass. 502, 506, 141 N. E. 502;Fairbanks v. Beard, 247 Mass. 8, 9, 141 N. E. 590, 30 A. L. R. 698. There doubtless have been many hundreds of equity cases dismissed, as was the case at bar, without entry of any formal decree. The purpose of such general order and the dismissal of cases pursuant to it on calling of the list are to rid the records of the court of cases which have lost their vitality because of the failure of parties to prosecute their rights under the bill. In very many such cases the irresistible inference is that nobody has sufficient interest in the case even to prepare a final decree. It is provided by Equity Rule 31 (1926) that the ‘solicitor of the party in whose favor a decree or order is passed shall draw the same.’ In a case of this nature decree in the true sense of expressing affirmative decision of the court in favor of one party or the other is not passed. The situation arises because by inaction of the parties the court is not required to make a decision of the case on its merits. There is, therefore, no solicitor of the party in whose favor a decree or order is passed on whom falls the burden of preparing and submitting the formal expression of the decision of the court. That burden ought not to fall upon the Commonwealth by requiring the clerks in its employ to prepare and submit to the court for approval decrees or orders of this nature. It follows that the force and effect of the docket entry of ‘Bill dismissed’ in such cases are that the bill is dismissed for want of prosecution and without costs to either party, that no formal decree to this effect need be prepared and filed among the records of the court in the case, and that the mere entry on the docket of ‘Bill dismissed’ in such circumstances is a final disposition of the case and means the same as if a formal decree to that end had been prepared and entered.

This conclusion is...