Foss v. Atkins

• Citation: 79 N.E. 763,193 Mass. 486
• Parties: FOSS v. ATKINS et al.
• Decision Date: 02 January 1907
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 486

79 N.E. 763

FOSS

v.ATKINS et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Jan. 2, 1907.

Report from Superior Court, Barnstable County; Lloyd E. White, Judge.

Action by one Foss against one Atkins and others. A decree was entered in the land court in favor of defendant Atkins, from which plaintiff appealed to the superior court, which ruled that the appeal should be dismissed, whereupon the case was reported to the Supreme Judicial Court. Ruling affirmed.Waterman L. Williams, for petitioner.

Geo. A. King, for defendants.

LORING, J.

From the report it appears that on February 16, 1906, the land court entered a decree in favor of Atkins and against Foss. On March 16, 1906, Foss took an appeal to the superior court. On the same day he filed in the land court a paper entitled ‘Issue to the Jury.’ ‘Said paper, entitled ‘Issue to the Jury,’ was not submitted to or approved by any judge of the court of land registration, prior to the entering thereof in the superior court, and was in no way called to his attention, otherwise then by the aforesaid filing.' On the next day, March 17, 1906, the appellant entered in the superior court his appeal and the paper entitled ‘Issue to the Jury,’ together with certified copies of all material papers.

The respondent made a motion in the superior court to dismiss the appeal on the ground that no issue for a jury was framed in the land court. The superior court ruled that the motion ought to be allowed and the appeal dismissed.

Under St. 1898, p. 685, c. 562, § 14, St. 1899, p. 84, c. 131, § 2, and Rev. Laws, c. 128, § 13, issues for the jury in the superior court were to be framed in the superior court if either party within the time allowed for entering appearance claimed a jury. This was changed by St. 1902, p. 370, c. 458, § 1. The language of that act is explicit in requiring the issues to be framed in what was then the court of land registration, and which is now the land court. See St. 1904, p. 451, c. 448, § 10. This change, originally made by St. 1902, p. 370, c. 458, § 1, has been continued in force since then. St. 1904, p. 450, c. 448, § 8. There is nothing to the contrary in St. 1905, p. 208, c. 288.

The provisions that issues shall be framed in the land court means that they shall be framed by the court on application to the court by the appellant, and until the appellant has brought his motion for the framing of issues to the attention of the court and has had them...