French v. Peters
| Decision Date | 26 February 1901 |
| Citation | 177 Mass. 568,59 N.E. 449 |
| Parties | FRENCH v. PETERS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm H. Baker, for appellants.
Ira A Abbott and Francis H. Pearl, for appellee.
This suit in equity was begun on June 12, 1895, by a writ in which Harriet C. Patch was joined as defendant with Peters administrator of the estate of Peaslee, and with the Second National Bank of Haverhill. The relief sought was, in substance, to compel the payment to the plaintiff of a nonnegotiable promissory note given by the defendant Patch to the intestate, Peaslee, in 1889, and also of a deposit of his in the defendant bank, both the note and the deposit book having been delivered to the plaintiff by Peaslee in his lifetime, in consideration of services rendered to him and in pursuance of a contract made by him. The suit was brought in equity, because both the note and the deposit were transferred to the plaintiff by one act of Peaslee, and the plaintiff's right was denied by Peaslee's administrator, as well as by the defendant Patch and by the bank. General appearances were entered by different counsel for each of the defendants. The defendant Peters and Patch Filed separate answers, the defendant bank filing none. The cause was sent to a special master to hear the parties and their evidence and witnesses, examine their vouchers, find the facts, and report the same to the court, with such portions of the evidence as either party might request. During the hearings before the master the death of the defendant Harriet C. Patch occurred and was suggested, and the master finds that on the closing day of the proceedings before him one of the counsel who had filed her answer appeared at the hearing before the master, and represented her estate as counsel for the administrator. No formal appearance was filed, nor was any entered on the docket of the court, for the administrators of Patch or for either one of them. While the proceedings before the master were going on, Arthur D. Patch and George D. Whitten were appointed administrators of her estate, and were such administrators when the counsel who had filed her answer appeared at the hearing before the master, and represented her estate as counsel for her administrator. The master found and reported that the deposit and the note were the property of the plaintiff; that the note was a valid and subsisting obligation against the estate of Harriet C. Patch; that the complainant was entitled to a decree that the defendant Peters, as administrator of Peaslee's estate, should assign the deposit and the note to the plaintiff, and that the bank should pay to the plaintiff the amount of the deposit, and that Harriet C. Patch should pay to the plaintiff the amount of the note. The defendant Peters alone filed objections and exceptions to the master's report. These exceptions not being insisted upon, the master's report was confirmed by the court, and a decree entered in favor of the plaintiff, which decree, among other things not now material, required Peters, as administrator of the estate of Peaslee, to assign the note of Patch to the plaintiff, and required 'the defendants Arthur D. Patch and George W. Whitten, administrators of the estate of the defendant Harriet C. Patch,' to pay to the plaintiff the amount of that note and interest. The decree was entered on March 9, 1900. On March 13, 1900, Whitten, as administrator of Patch, moved the court to vacate the decree. On April 6, 1900, he filed in the cause, in his own name as administrator, and without mention of Patch, his co-administrator, an appeal to this court from the decree of March 9, 1900. On May 10, 1900, Arthur D. Patch, as one of the administrators of Harriet C. Patch, filed his written objection to the further prosecution of the appeal of Whitten, alleging that he was a co-administrator with Whitten, and that the appeal was taken without Patch's knowledge of consent. On the same day the plaintiff moved that Whitten's appeal be dismissed because he had no right to appeal, because he did not file objections or exceptions to the master's report, and because Arthur D. Patch was co-administrator with Whitten, and did not join in or authorize the appeal.
The right of appeal to the full court is given by our statutes to 'any party aggrieved.' Pub. St. c. 151, § 13; St. 1883, c. 223, § 2. The fact that such a party has filed no exceptions to the master's report, while it may preclude him from raising certain questions in the appellate court, is not a reason for dismissing his appeal from a final decree. Upon such an appeal the question is open to him whether, upon the facts found by the master, the decree is justified by the bill and the record.
It is said to be the general rule that the appeal of a party aggrieved may be dismissed because other parties with whom he is joined as defendant have not appealed also. Owings v Kincannon, 7 Pet. 399, 8 L.Ed. 727; Lovejoy v. Irelan, 17 Md. 525; Masterson v. Herndon, 10 Wall. 416, 19 L.Ed. 953. See, also, Clifton v. Sheldon, 23 How. 481, 16 L.Ed. 429, and 2 Am. & Eng. Enc. Pl. & Prac. p. 1, § 2 et seq. But it is otherwise when the co-defendants have separate interests. Todd v. Daniel, 16 Pet. 521, 10 L.Ed. 1054; Brewster v. Wakefield, 22 How. 118, 16 L.Ed. 301; Day v. Washburn, 23 How. 309, 16 L.Ed. 551. Under our own practice, from a very early time, independent parties joined in an action have had the right, without joining their co-defendants, to have reversed so much of an erroneous judgment as affected themselves. Whiting v. Cochran, 9 Mass. 532; Inhabitants of...
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