Fino v. Municipal Court of City of Boston

• Decision Date: 10 July 1950
• Citation: 326 Mass. 277,93 N.E.2d 558
• Parties: FINO v. MUNICIPAL COURT OF CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 277

93 N.E.2d 558

FINO v. MUNICIPAL COURT OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 10, 1950

Argued April 4 1950.

B Korolick, Boston (B. Alpert, Boston, with him), for petitioner.

B. B. Levenson Boston (F. Glazer, Dorchester, with him), for respondent.

Before QUA, C. J and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a petition for a writ of certiorari, G.L. (Ter.Ed.) c. 249, § 4, as amended by St.1943, c. 374, § 1, brought in the Superior Court. G.L.(Ter.Ed.) c. 213, § 1A, inserted by St.1939 c. 257. The case was heard on the petition and return, and the petition was dismissed. The case comes here on appeal. G.L.(Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4. See Murphy v. Third District Court of Eastern Middlesex, 316 Mass. 663, 667, 56 N.E.2d 467.

It appears from the return that judgment was entered against the petitioner in the Superior Court on February 20, 1928, in the sum of $616.22 upon which execution issued on February 23, 1928. On April 17, 1928, the creditor began supplementary proceedings in the Municipal Court of the City of Boston, St.1927, c. 334, effective March 1, 1928, and on May 16, 1928, an order was made directing the present petitioner, who was the judgment debtor and is hereafter so designated, to make partial payments. On May 20, 1930, this order was revised and a new order made. No further action was taken until January 19, 1949, when a petition was filed in the Municipal Court to have the judgment debtor adjudged in contempt for failure to comply with the order of May 20, 1930. G.L.(Ter.Ed.) c. 224, § 16, as amended by St.1943, c. 292, § 1. On April 20, 1949, the judgment debtor filed a motion in the supplementary proceedings that the proceedings 'be dismissed for the reason that the execution, upon which the proceedings were brought, is over twenty (20) years old and was returnable to the court from which it issued on February 23, 1948, and is now of no force and effect, and this court is without authority to issue process for the payment of said execution or the judgment upon which it issued.' After hearing this motion was denied. After further hearing the judge found that the debtor had property and ordered him to assign all his right, title and interest in and to two parcels of land with the buildings thereon (to the creditor). The judgment debtor complied and the proceedings were dismissed. It appears from the return that 'No requests for rulings of law, either oral or written, were presented by the judgment debtor at any time.'

If we assume, as we think we must, that the judgment debtor his motion to dismiss properly raised the question as to the limitation of time in which orders may be made in supplementary proceedings, we are of opinion that there was no other way to bring this question to the attention of this court than by certiorari. It is made clear in Donnelly v. Montague, 305 Mass. 14, 17, 18, 24 N.E.2d 864, that neither a writ of error nor a report to the Appellate Division lies in supplementary proceedings. See also Giarruso v. Payson, 272 Mass. 417, 420-421, 172 N.E. 610. An appeal to the Superior Court in these proceedings lies only for charges of fraud or misconduct under the special provision of G.L. (Ter.Ed.) c. 224, § 19. Except as there provided, 'There shall be no appeal from any judgment, order or sentence under the provisions of this chapter.' G.L.(Ter.Ed.) c. 224, § 18.

It is well established that certiorari will lie where no other means of relief are available. In Swan v. Justices of the Superior Court, 222 Mass. 542, 544, 111 N.E. 386, 387, it was said of certiorari, 'Its common purpose is the beneficent one of enabling a party who has no remedy by appeal, exception, or other made of correcting errors of law committed against his rights in a proceeding judicial or quasi judicial, to bring the true record, properly extended so as to show the principles of the decision, before a higher court for examination as to material mistakes of law.'

Apart from the reasoning in the Swan case it would seem that now by statute certiorari does exist to correct errors in proceedings not according to the course of the common law. G.L.(Ter.Ed.) c. 249, § 4, as amended by St.1943, c. 374, § 1. Clearly supplementary process is not according to the course of the common law for it has been held to be equitable in nature. Giarruso v. Payson, 272 Mass. 417, 172 N.E. 610; Little v. Mathews, 317 Mass. 422, 425, 59 N.E.2d 13.

The remaining question to be decided is whether the return disclosed any error of law in the proceedings in the Municipal Court. We are...