Donovan v. Donovan

• Decision Date: 12 February 1916
• Citation: 223 Mass. 6
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SAMUEL B. DONOVAN & another v. JOSEPH A. DONOVAN & another.

223 Mass. 6

SAMUEL B. DONOVAN & another v. JOSEPH A. DONOVAN & another.

Supreme Judicial Court of Massachusetts, Suffolk.

February 12, 1916

October 19, 1915.

Present: RUGG, C.

J., LORING, CROSBY PIERCE, & CARROLL, JJ.

Equity Pleading and Practice, Appeal. Words, "A party aggrieved."

Under R.L.c. 159 Section 19, amended by St. 1911, c. 284, Section 1, one of two defendants in a suit in equity cannot appeal from a final decree which as to him orders that the bill be dismissed, he not being "a party who is aggrieved" by such decree.

Under R.L.c. 159 Section 19, as amended by St. 1911, c. 284, Section 1, a defendant in a suit in equity, as against whom a bill is dismissed by a decree that orders his co-defendant to pay a sum of money to the plaintiff, is not "a party who is aggrieved" by such decree, from which his co-defendant does not appeal, by reason of the fact that he may be affected by the decree because he is a joint obligor with his co-defendant on a bond dissolving an injunction in the same suit.

W. A. Parker, for the defendant Kirby, submitted a brief. M. H. Sullivan, for the plaintiff.

CARROLL, J. This is a suit in equity by Samuel B. Donovan against Joseph A Donovan and William Kirby. An injunction issued, which was dissolved upon the filing of a bond executed by the defendants with surety in favor of the then plaintiff. Later Annie M. Donovan was joined as a plaintiff. On the report of the master to whom the case was referred, a decree was entered ^[*] ordering the defendant Joseph A. Donovan to pay the plaintiff Samuel B. Donovan the sum of $6,782.59, and to pay the plaintiff Annie M. Donovan the sum of $512.81. No appeal was taken by the defendant Donovan. The decree ordered the bill dismissed as to Kirby, and from this decree Kirby appeals.

"A party who is aggrieved by a final decree of a justice of the Supreme Judicial Court or a final decree of the Superior Court may . . . appeal therefrom." R.L.c. 159, Section 19. St. 1911, c. 284, Section 1. See Griffin v. Griffin, 222 Mass. 218 . Where a finding is in a party's favor, he is not a person aggrieved and cannot appeal. Langley v. Conlan, 212 Mass. 135, 140. Smith v. Dickinson, 140 Mass. 171 . Hayden v. Stone, 112 Mass. 346.

The liability of Kirby, if any, as a joint obligor of the bond to Samuel B Donovan, see Prior v. Pye, 164 Mass. 316 , does not make him a party who is aggrieved by the decree. The statute gives the party to the suit the right to appeal from an adverse decree, and he must be aggrieved as a party, and not collaterally, in order to exercise this right. The surety on a bond is not a party to the suit and of course cannot appeal; and because as one of the obligors of the bond Kirby may be affected by the decree, he is not given the right of a party to appeal therefrom. Estate of McDermott, 127 Cal. 450. Berthold v. Fox, 21 Minn. 51. Shaw v. Humphrey, 96 Maine, 357. Richardson v. Chevalley, 26 La. Ann. 551. Lake Bisteneau Lumber Co. Ltd. v. Sheriff, 49 La. Ann. 1294. Farrar v. Parker, 3 Allen, 556, arose under Gen. Sts. c. 117, Section 8, now R.L.c. 162, Section 9, giving to a person aggrieved by a decree of...